FILED

March 3, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

W. STEVEN RENFRO, JR., ) KNOX CIRCUIT

 ) C.A. NO. 03A01-9710-CV-00447

 )

 Plaintiff-Appellant )

 )

 )

 )

vs. ) HON. DALE WORKMAN 

 ) JUDGE

 )

 )

 )

 )

JOHN DOE, ) REVERSED AND REMANDED

 )

 Defendant-Appellee )

DAIL R. CANTRELL, Cantrell, Pratt & Varsalona, Clinton, for

Appellant.

JANET L. HOGAN, Hogan & Hogan, Knoxville, for Appellee Ohio

Casualty Insurance. Company.

O P I N I O N

McMurray, J.

This is an appeal from a summary judgment entered in favor of

Ohio Casualty Insuranc e Co mpany, an unnamed party brought before

the court pursuant to T.C.A. § 56-7-1206. The question before us

is whether the plaintiff, Steven Renfro, is an insured within the
2

meaning of Ohio Casu alty's uninsured motorist (UM) policy provisions. The precise issue is whether the plaintiff, at the time of

his injury, was "occupying" the covered vehicle as that term is

defined in the policy under consideration. The trial court found,

o n motion for summary judgment, that the plaintiff was no t

"occupying" the vehicle. We reverse the judgment of the trial

court.

The facts are not in dispute. On August 31, 1994, plaintiff,

who was employed as a general construction laborer, received a call

from his supervisor, Brent Thornell, who informed him that he and

a fellow employee, Bill Hudlow, had run out of gasoline on the way

t o a work site. Thornell asked the plaintiff to bring them some

fuel to servic e t he truck. The truck driven by Thornell was

insured under the Ohio Casualty's UM policy.

Upon his arrival at the site, plaintiff parked his vehicle

three to four feet behind the d isabled truck. The vehicles were

parked on the right side of the road, not entirely but mostly off

the pavement. Plaintiff brought two cans of gasoline and began

pouring the first into the truck's tank. The tank was located near

the rear of the driver's side of the vehicle. After the first

container was empty, Thorn ell began filling the tank with the

second container. 
3

As this was occurring, the persons present heard the screech

o f brakes and saw an out-of-control car coming around the curve and

heading for th e truck. Hudlow shouted "run!" and the men scattered. Thornell ran across the road and dived into a ditch. The

plaintiff and Hudlow ran away from the road and the truck, across

a n adjacent lawn. When they saw and heard the approaching car,

plain tif f and Hudlow were standing between the two vehicles and

plaintiff was placing the empty gas can in the back of the insured

truck. 

The car careened off t he road and struck the plaintiff,

dragging him for about 100 yards. The driver of the car never

stopped and has not bee n identified nor apprehended. Hudlow

testified that the car was approximately eighteen to twe nty feet

from the road at the point where it struck the plaintiff.

Plaintiff sustained serious injuries and testified that he has no

memory of the entire incident.

Plaintiff filed this lawsuit against the unidentified

motorist, State Farm Mutual Insurance Company (the UM insurance

carrier for the truck he had driven to the site of the accident),

and defendant Ohio Casualty Group of Insurance Companies. The

trial court granted summary judgment in favor of State Farm. That

judgment is not involved in this appeal. 
4

A s stated earlier, the determinative issue in thi s case is

whether plaintiff was "occupying" the disabled truck, as that term

i s defined by the defendant's UM insurance policy. If he was, the

policy provides coverage for his injuries. The UM policy states

that "'occupying' means in, upon, getting in, on, out or off." The

c o ntroversy revolves around whether plaintiff can fairly b e

determined to have been "upon" the insured truck within the meaning

of the policy. 

Our interpretation of defendant's policy is guided by these

well-established principles:

The analysis used in construing insurance policies

i s well set tled. "Insurance contracts like other

contracts should be construed so as to give effect to the

intention and express language of the parties." Blaylock

& Brown Construction, Inc. v. AIU I nsur ance Co. , 796

S.W.2d 146, 149 (Tenn. App. 1990). Words in an insurance policy are given their common and ordinary meaning.

Where language in an insurance policy is susceptible of

more than one reasonable interpretation, however, it is

ambiguous. See e.g., Moss v. Golden Rule Life Insurance

Co. , 724 S.W.2d 367, 368 (Tenn. App. 1986). Where the

ambiguous language limits the coverage of an ins urance

policy, t h at language must be construed against the

insurance company and in favor of the insured. Allstate

Insurance Co. v. Watts , 811 S.W.2d 883, 886 (Tenn. 1991).

Tata v. Nichols , 848 S.W.2d 649, 650 (Tenn. 1993). 

The Supreme Court in Tata was presented with a question of law

identical to that presented here. Since Tata , in our view, is the

prevailing law, we will follow the Tata analysis. The Tata court,
5

construing identical language in a UM insurance policy, determined

that the word "upon" "has no precise meaning and is, therefore,

sufficiently ambiguous under the circumstances of this c ase t o

require construction." I d . at 651. 

The facts in Tata are quite similar to those in the presen t

case. In that case the plaintiff was crushed between two vehicles

when an uninsured motorist crashed into the cars while plain tiff

was trying to jump-start one of them on the side of the road. The

court enga ged in a thorough review of the out-of-state jurisdictions that had construed the term "upon" within the concept of

"occupying." I d . at 651-53. In so doing, the court rejected a

narrow and constrictive construction of these terms, stating:

Other jurisdictions, however, have not defined

"occupying" so narrowly, and the majority of jur isdictions hold that "occupying," as defined in the policies

before the Court, incl udes those who can establish a

certain "relationship" with the insured car at the time

o f the accident. In setting out the criteria to consider

in determining whether this relationship exists, courts

have looked to factors such as the proximity between the

claimant and the insured car in time, distance, and

geography, as well as the intent of the claimant. These

jurisdictions have struggled to develop an analysis which

determines a "rational limit" to the activity that may be

said to be encompassed within the term "occupying."

I d . at 651. 
6

The Tata court cited and applied the test established by the

court in Utica Mut. Ins. Co. v. Contrisciane , 473 A.2d 100 5 (Pa .

1984), which utilized the following criteria:

(1) there is a causal relation or connection between the

injury and the use of the insured vehicle;

(2) the person asserting coverage must be in a reasonably

close geographic proximity to the insured vehicle,

although the person need not be actually touching it;

(3) the person must be vehicle oriented rather than

highway or sidewalk oriented at the time; and

(4) the person must also be engaged in a transaction

essential to the use of the vehicle at the time.

I d . at 652.

Subsequent Tennessee decisions addressing this issue have

applied the Utica test. Younger v. Reliance Ins. Co. , 884 S.W.2d

453, 457 (Tenn. App. 1983); Miller v. Mab e , 947 S.W .2d 151, 154

(Tenn. App. 1997). The Tata court held that the plai ntif f was

"upon" and "occupying" both vehicles between which he was crushed,

and therefore covered by the UM policies of both defendants. I d . at

653. 

 Applying this analysis to the particular factual context of

the present case, we are of the opinion that plaintiff was

sufficiently "vehicle-oriented" at the time of the accident to be

fairly cons trued as "upon" the insured vehicle under the policy.
7

A s was the Tata plaintiff, he was engaged in attempting to service

the disabled insured vehicle. Thus, he was clearly "engaged in a

transaction essential to the use of the vehicle at the time."

According to Hudlow's undisputed testimony, plaintiff had been in

physical contact with the truck and was in close proximity to it,

i f no t actually touching it, when the hit-and-run driver approached. Further, plaintiff's injury occurred in relatively close

proximity to the truck, and only a matter of a few seconds after he

ran away from it. We find plaintiff had not "severed his relationship" with the insured v ehicle by running away in an attempt to

avoid being hit by the car.

The parties cite three subsequent Tennessee cases as pertinent

t o our analysis: Younger and Miller , supra , and the unreported

case of Brown v. White , 1996 WL 118586, No. 03A01- 950 9-CV-00308

(Tenn. App. Mar. 19, 1996). Brown dealt exclusively with the

interpretation of the concept of "entering" as opposed to "upon,"

a concept not applicable or relevant here. I d . at **3. Significantly, in both Younger and Miller , the plaintiffs were engaged in

activities entirely unrelated to the service or operation of their

respective vehicles. Younger , 884 S.W.2d at 456 (plaintiff "took

equipment from his truck and went into a field or ditch to repair

the downed power lines" when injured); Miller , 947 S.W.2d at 152

(plaintiff sta ndin g in middle of road, threading power cable

between tree branches when injured). We thus believe the present
8

facts to be distinguishable from Younger and Miller and analogous

to Tata .

Fin ally, the following statement by the Tata court, made in

response to the contention that the definition of "upon" and

"occupying" within a UM po licy should be narrowly construed, is

equally applicable here:

 Th is holding is consistent with the purpose o f

Tennessee's uninsured motorist statute. Tennessee's

uninsured moto rist law requires the insurer to offer

uninsured motorist coverage at least equal to the limit

carried by the named insured for general liability

coverage. T.C.A. § 56-7-1201(a ). The uninsured

motorist coverage must extend to persons legally entitled

t o recover damages from an uninsured motorist, if the

damages arise "out of the ownership, maintenance, or use"

o f the insured car. I d . "Our uninsured motorists

statute was enacted in response to the growing public

concern over the increasing problem arising from property

and personal injury damage inflic t ed by uninsured and

financially irresponsible motorists. Its purpose is to

provide, within fixe d limits, some recompense to. .

.persons who r eceive bodily injury or property damage

through the conduct of an uninsured motorist who cannot

respond in damages." Shoffner v. State Farm Mutual

Automobil e Ins urance Co. , 494 S.W.2d 756, 758 (Tenn.

1972), rev'd on other grounds, State Farm Mutual Automobile Insu r ance Co. v. Cummings , 519 S.W.2d 773

(Tenn.1975).

Tata , 848 S.W.2d at 654.

W e are of the opinion that the application of the Tata

analysis to the facts of this case requires a reversal of the

summary judgment in favor of Ohio Casualty. Accordingly, the order
9

of the trial court granting summary judgment is reversed, and the

case remanded for such further action as may be necessary. Costs

on appeal are assessed to the appellee.

_____________________________

Don T. McMurray, Judge

CONCUR:

____________________________

Herschel P. Franks, Judge

______________________________

William H. Inman, Senior Judge
IN THE COURT OF APPEALS

W. STEVEN RENFRO, JR. ) KNOX CIRCUIT

 ) C.A. NO. 03A01-9710-CV-00447

 )

 Plaintiff-Appellant )

 )

 )

 )

vs. ) HON. DALE WORKMAN 

 ) JUDGE

 )

 )

 )

 )

JOHN DOE, ) REVERSED AND REMANDED

 )

 Defendant-Appellee )

JUDGMENT

This appeal came on to be heard upon the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

reversible error in the trial court.

The order of the trial court granting summary judgment is

reversed, and the case remanded for such further action as may be

necessary. Costs on appeal are assessed to the appellee.

PER CURIAM