# 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 the2

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.

Uponhis 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 nadjacent lawn. Whenthey 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 fromthe 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 summaryjudgment 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 policyprovides coverage for his injuries. The UM policy states that "'occupying' means in, upon, getting in, on, out or off." The
c o ntroversyrevolves 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. , 796S.W.2d 146, 149 (Tenn. App. 1990). Words in an insurance policyare given their commonand 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, sufficientlyambiguous 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 whenan 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 betweenthe 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 maybe 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 relationor 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 betweenwhich he was crushed, and therefore covered by the UMpolicies 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 fairlycons trued as "upon" the insured vehicle under the policy.7

A s was the Tata plaintiff, he was engaged inattempting to service the disabled insured vehicle. Thus, he was clearly "engaged in a transactionessential 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 proximityto the truck, and only a matter of a few seconds after he
ranaway 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 present8

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 UMpo 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 concernover the increasing problem arising from property and personal injury damage inflic t ed by uninsured and financiallyirresponsible 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 onother grounds, State FarmMutual 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 summaryjudgment in favor of Ohio Casualty. Accordingly, the order9

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 JudgeIN 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 considerationthereof, 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