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Illinois Court: Driver Killed After Exiting Truck Was ‘Occupying’ It Within Meaning of UIM
Insurance Law Update
Illinois Appellate Court
In DeSaga v. West Bend Mut. Ins. Co., ___ N.E.2d ___, 2009 WL 1684965 (Ill. App. Ct. June 15, 2009), the Illinois Appellate Court held that a man who was hit and killed while picking up angle iron that had fallen off his truck was “occupying” the vehicle for purposes of underinsured motorist (UIM) coverage through his employer’s automobile insurance policy.
In October 2006, Felix DeSaga was driving his employer’s truck when pieces of angle iron fell out of the truck. He pulled over and exited the truck to retrieve the angle iron. He left the truck running with the emergency flashers on. As he was attempting to clear the road, DeSaga was struck and killed by a car driven by an underinsured motorist.
DeSaga’s estate made a claim for UIM benefits under his employer’s business automobile policy issued by West Bend Mutual Insurance Company. West Bend denied coverage on the ground that DeSaga was not an “insured” under the policy. The policy defined an “insured” as including anyone who was “occupying” a covered vehicle, and “occupying” as “in, upon, getting in, on, out or off” of the covered vehicle. In the litigation that ensued, the trial court granted West Bend’s motion for summary judgment and denied DeSaga’s cross-motion for summary judgment, holding that DeSaga was not “occupying” the vehicle at the time of the accident.
The Appellate Court reversed. The court found that DeSaga was in virtual physical contact with the truck at the time of the accident. The court noted that DeSaga was using the covered vehicle shortly before the accident, and that he had exited the vehicle while it was running with the emergency flashers on. The Court also observed that DeSaga’s prompt attention to the traffic hazard that he had created was appropriate if not also legally required. Therefore, the court concluded that DeSaga was “occupying” the vehicle at the time of the accident and was entitled to UIM coverage, and it directed the trial court to vacate the summary
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