February 19, 2026
In Gray v Federated Mutual, an unpublished decision, Plaintiff was working as a tanker-truck driver for Watkins Oil Company, Inc. His job required he unload gas into gas stations’ underground storage tanks. At the time of the incident, Plaintiff had just finished unloading the gas from the tanker and was in the process of removing the “drop head” which connects the tanker to the below ground tank at the gas station. Both his feet were planted on the ground and he was bending over to remove the “drop head” with one hand resting on the truck and the other on the “drop head” when he was struck by another vehicle. Plaintiff had been out of the tanker-truck for approximately half an hour before the incident occurred.
The defendant driver did not have an active insurance policy at the time of the accident, so Plaintiff sought benefits under his employer’s (Watkins Oil Company, Inc.) uninsured-motorist policy through Federated Mutual. Their policy stated that coverage applied to “anyone ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’” Occupying was defined to mean “in, upon, getting in, on out or off.”
Plaintiff filed a lawsuit to collect uninsured-motorist benefits from Federated Mutual, who moved for a Motion for Summary Disposition under MCR 2.116(C)(8) and (10) asserting that Plaintiff was not “occupying” the truck at the time of the accident because only his hand was touching the truck. Federated Mutual relied on Westfield Ins Co v Ken’s Serv, 295 Mich App 610 (2012), where the Court of Appeals addressed similar policy language and found the plaintiff in that case was not occupying a tow truck when he was leaning on the truck with both hands at the time of impact. The trial court granted the Motion and Plaintiff appealed.
The Court of Appeals found it was clear that Plaintiff was not getting into or out of the tanker-truck at the time he suffered injuries. The only question on appeal, then, was whether Plaintiff was “upon” the tanker-truck at the time of the accident. The Court looked to Rohlman v Hawkey-Security Ins Co, 207 Mich App 344 (1994), in which the Court evaluated the meaning of “upon” in the context of an uninsured-motorist policy. The Rohlman Court of Appeals did not conclusively define “upon” but determined it could mean some physical contact. Later, the Supreme Court in Rednour v Hastings Mut Ins Co, 468 Mich 244 (2003), rejected the idea that physical contact alone is enough to show that a person is “upon” a vehicle such that they are “occupying” the vehicle.
In Gray, the Court of Appeals agreed with the trial court that Plaintiff was not upon the tanker truck so as to be occupying it. The Court cited to Rednour’s language that physical contact itself is not enough. The Court also noted they were bound by Westfield, supra, in which the plaintiff was leaning with two hands on the tow-truck and was still found not to be “upon” or “occupying” the vehicle. In Gray, Plaintiff only had one hand on the tanker truck and the Court reasoned “having only one hand on a vehicle is about the least amount of physical contact that someone could have with a vehicle” such that he was not “occupying” the vehicle and was not entitled to recover uninsured motorist benefits.