"GETTING IN" IS BROADLY DEFINED

Michelle M. Smigiel

In Switalski v Clevenger, et al, the Court of Appeals addressed the question whether plaintiff decedent was “occupying” a vehicle at the time he was struck and killed by another vehicle, and the question whether excess coverage applied.

Plaintiff decedent, Fire Chief Edward Switalski, responded to a scene in a Fire Department issued Ford Expedition. Once the scene was clear, Switalski walked back to the Expedition and there was evidence that he was behind the Expedition with the hatch open, removing his gear, at the time he was struck and killed by a vehicle being operated by defendant Clevenger.

The Expedition was covered under an insurance policy issued by defendant Hamilton with $1,000,000.00 in underinsured (UIM) coverage. The Expedition was also covered by a commercial umbrella policy issued by defendant Employers with $1,000,000.00 in excess coverage. The insurers argued that the UIM coverage was not applicable because Switalski was not “occupying” the Expedition when he was injured. A jury unanimously concluded that Switalski was “occupying” the Expedition when he was struck. Employers also argued that it was entitled to summary disposition because the umbrella policy did not include excess coverage for UIM benefits but the Circuit Court did not agree. This appeal followed.

The Hamilton policy defined “occupying” as “in, upon, getting in, on, out or off.” Breaking down the plain, unambiguous language of the policy, the Court of Appeals noted the definition incorporated two states: the state of being in the vehicle and the state of being upon the vehicle. It also incorporated four processes: the process of getting in the vehicle, the process of getting on the vehicle, the process of getting out of the vehicle, and the process of getting off the vehicle.

The Court concluded that there was a genuine issue of material fact whether Switalski was “getting in” the Expedition when he was struck and killed. Finding similarities between the present case and that of Ansara v State Farm Ins. Co, 207 Mich App 320, 321-322 (1994), the Court noted in this case there was evidence that Switalski had walked back to the Expedition and that he had opened the hatch and was removing and stowing his firefighter’s gear when he was struck. Because Switalski had made physical contact with the Expedition, and had interacted with the vehicle in ways preliminary to and reasonably necessary before, physically positioning themselves in a vehicle, the Court of Appeals found the trial court did not err by denying the insurers’ motion for summary disposition and did not abuse its discretion when it denied the insurers’ motion for reconsideration. For the same reasons, the Court of Appeals concluded the trial court did not err by denying the insurers’ motion for directed verdict.

Defendant Employers also argued on appeal that its umbrella policy did not apply to the UIM coverage at issue because the UIM coverage was not listed on the declarations page of the underlying policy and because the umbrella policy excluded coverage for losses payable under uninsured or underinsured motorist law. The Court of Appeals found that the Employers umbrella policy plainly listed the Hamilton auto policy as underlying insurance to which excess coverage applied which would include the UIM coverage provided by the Hamilton policy. The Court of Appeals also found that under the plain terms of the umbrella policy’s exclusion, the loss must be payable or result from the applicable law, but Michigan law does not mandate payment of losses arising from an underinsured motorist so the exclusion does not apply.