### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 10, 2001 Session
JOHN WARFIELD and wife , ANNE WARFIELD, v. CARLOS CLIFFORD

LOWE, and COREGIS I NSURANCE COMPANY
Direct Appeal from the Circuit Court for A nderson County No. 99LA0490 Hon. James B. Scott, Jr., Circuit Judge

FILED FEBRUARY 1, 2002

No. E2001-01042-COA-R3-CV

Pl ai ntiff sought to establish insurance coverage for his injuries under his employer’ s policy. The Trial Jud ge decla red no co verage . On appe al, we a ffirm. Tenn. R. App.P.3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which D. M ICHAEL S WINEY , J., and W ILL IAM H. I NMAN , Sr. J., joined.

Dail R. Can

trell, Clin ton, Tenn essee, f

or Appel lant. Douglas L. Dutton, Knoxville, Tennessee, for Appellee.

OPINION

In this actio n to reco ver unde r the te rms of an ins urance policy, the Trial Court grantedsummary judgment in favor of the uninsured motorist carrier, denying coverage for plaintiff, because he was not “occupying” the vehicle within the meaning of the policy terms, when struck by defendant’s vehicle during a traffic stop.

The essential facts are undisputed. Plaintiff was employed as a sheriff’s deputy for Anderson County, and while on a routine patrol he observed defendant’s vehicle and determined

that the lice nse plate number did not match the vehicle’s make and model. He dec ided to effectuate a traffic stop and initiated his blue lights. Defendant traveled approximately five miles bef or e stopping for a traff

ic light, an d at that p oint plaint iff park ed his pat

rol car in accor dance w ith standardprocedure, exited, and approached the suspect vehicle shouting verbal commands to the driver. Plaintiff

testifie d in his dep osition tha t he rea ched in to t he driver’s window with his left hand, attempting to knock the ignition switch into the “off” position. His left hand was “inside the-2-

passenger compartment” and defendant was trying to fend him off, striking plaintiff, grabbing at him, and trying to keep his hands away from the ignition. Defendant then turned the stee ring wheel sharply, accelerated, causing the rea r of the driver’s door to strike plai ntif f, spun him around, causing h is person al injurie s.
Plaintiff claims coverageunder the uninsured motorist provision of his employer’s insurance policy. Defendant insurance company denied c overage on the basis that plaintiff was not an “occupant” as defined in the policy.

Under th e te rms of the policy, an insured for these purposes, is “anyone . . . ‘occupying’ a

covered ‘auto’ or a temporary substitute for a covered ‘auto’.” The policy states in the “Definitions” section: “‘Occupying’ means in, upon, getting in, on, out [sic] off.”

Our review i s de novo with no presumption of cor rectness of the Trial Court’s decision. Union Carbide Corp. v. Huddleson , 854 S.W. 2d 87, 91 (Tenn. 1993). It is well settled that insuran ce contra cts are construed to give effect to the intention and expr ess language of the parties. Blaylock & Brown Const. Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn. Ct. App. 1990). Ambiguous language purporting to limit coverage must be construe d a gainst the company a

nd in favor of the i nsured. Allstate I ns. Co. v. W

atts , 811 S.W.2 d 883, 886 (Tenn. 199 1). Exce ptions, exclusio ns, and limitations in policies of insurance are to be “most strongly construed against the insurer.” Hahn v. H

ome Life I

ns. Co. of Ne w York , 84 S.W.2d 361 (Tenn. 193 5). Unins u red motorist statutes are to be liberally construed to the end that innocent victims will be protected fr om irresponsible drivers. Rau v. Liberty Mut. Ins. Co. , 585 P.2d 157, 159 (Wash. Ct. App. 1978).

Our Supreme Court anal yzed the me aning of “occupying” as used in an uninsured motorist policy which defined it as “in, upon, getting in, on, out of or off” the covered vehicle (the identical language

is used in the policy in this case). Tata v. Nichols , 848 S.W.2d 649 (Tenn. 1993). The Tata Court surveyed numerous decisions on the meaning of “occupant,” concluding that “upon” has no precise meaning except in the context of partic ular fa ctual cir cumstanc es, and is sufficie ntly ambiguous to require construction. Id. , at 651, 653. Accord, Whitmire v. Nationwide Mut. Ins. Co. , 174 S.E.2d 391 (S.C. 1970); Moherek v. Tucker , 230 N.W. 2d 148 (W isc. 1975) ; Wolf v. Am er. Cas. Co. of Reading, Pa. , 118 N.E. 2d 777, 780 (Ill. Ct. A

pp. 1954) . Rejecti n g the line o f cases using
na rrow, constrictive, construction of these policies, the Court was persuaded by the br oad er approac h developed in two Pennsylvania cases. In Tyler v. I ns. Co. of North America , 457 A.2d 95 (1983),
one is said to “occupy” a vehicl e until he “sever s all connec tion with it. That point of sever ance is reached when he b ecomes h

ighway or iented a s opposed

to being vehicle oriented. . . .” Id. A fourpart test refined the concept in Utica Mutual Ins. Co. v. Contrisciane , 473 A.2d 1005 (1984). These criteria were adopted and applied in Tata :

(1) there is a casual relation or co nnectio n between the injury and the use of the insured vehicle; (2) the person asserting coverage must be in areasona

bly close geograp hic proxi mity to the insu

red vehi cle, although the p erson ne ed not be a ctually to uching it; (3) the person must be vehicle oriented rather than highway or sidewalk oriented at1 The Tenness ee case s are: Younger v. Reliance Ins. Co., 884 S.W.2d 453 (Tenn . Ct. A pp.

1993); Mille r v. Mabe , S.W.2d 151 (Tenn. Ct. App. 1997); and Renfro v. Doe , 979 S.W.2d 311 (Tenn. Ct. App. 1998).

-3-

the time; and (4) the pers on must also

be engaged in a

transac tion esse

ntial to the

use of the vehicle at the time.

This test is thought to effectuate the purposes of Tennessee’su ninsured motorist statute, that is, to “

provide, within

fixed limits, some recompense to . . . perso ns who re ceive bo dily injury or property damage through the conduct of an uninsured mot orist who cannot r

espond in damages.” Tata , at 654, citing Shoffner v. State Farm Mut. Automobile Ins. Co., 494 S.W.2d 756, 758 (Tenn. 1972), ( rev’d on other grou

nds)

. On appea l, the re spective

parties e ssentiall

y agree the issue, applying the Tata test, is whether plaintiff was occupying his patrol vehicle at the time he made the stop and attempte d to subdue the defendant. The critical issue is the relationship of plaintiff and the vehicle, i.e., whether his activities were “vehicle oriented” and/or whether he was engaged in an

activity “essential to the use of the vehicle” or whether he “ severed his relationship” with the vehicle.

Three Tennessee cases have applied Tata to cons t rue the meaning of “occupancy” for the purposes of uninsured motorist coverage. 1 The facts of Younger, M iller and Renfro , support the conclusion that Officer Warfield had se vered his relationship with his vehicle, even though he
was using it to assist in a traffic stop. In Younger and Miller , the vehicles functioned more like a “tool” to assist the plaintiff in s ome aspect of his duties unrelated to the use or operation of the vehicle itself. In Younger , the truck ha d merely transpor ted the wo

rker to a jobsite where he took equipment

out and went some distance away to repair power lines. In Miller , a cablevision worker used the vehic le’s fla shers an d mounted a spotlight to

light the are a where

he was wo

rking to in stall cable wi re. In Renfro , the injur ed perso n was re fueling a nother ve hicle. He

was “ca sually connected” in an activity related to the operati on of the v ehicle he was fu eling, but had seve red his relation ship with his own vehicle. Thus, none of the Tennes see c ases demonstrates a causal connection betwee

n the use o f the veh

icleand the plaintiff’s injury. In each, the claimant’s attention
was not directed toward his vehicle, and his activities whe n inj ured were not “essential” to the continued use or operation of the vehicle. Only in Renfro , was the plaintiff causall y connec ted to the vehicle, but

it was the

vehicle he was a ttending to

refuel ing, not the

one he dr ove to the scene. More importantly, the correct analysis is whether the actions were “essential to t he use or the cont inued use” of t

he vehic le, not whether the vehicl e was es sential to the offic er in mak

in g th e traffic stop, as c ontended

by plaintif

fs.

Cases are cited where a person is held to have been an “occupant” even though they may have physically been many feet fr om the veh

icle. How ever, th

e common p oint shar

ed in all of these cases is that the p erson wa s sti ll engage d in an activity somehow directed toward the use or-4-

continued use of the vehicle, although not in physical contact with it, whether it be attaching jumper cables, changing

tires, pumping gas, directing traffic at an accident sce ne, or making a

traffic report, etc.

We conclude, as did the Trial Court, that Officer Warfie ld was not “ occupying” his patrol car for the purposes of covera ge under the policy. It is undisp uted that he left th e vehicl e and
was focused upon the subject vehicle. He had rea ched inside it and attempted to subdu e th e defendant. Tenn. Code Ann. §56-7-1201(b)(1) state s that the injured party cannot be an occupant of more than one vehicle at one time. Under the statute, since pla intiff w as physically connected with defe ndant’s v ehicle a

nd scuff ling with the defendant still inside, he could not be an occupant of the covered vehicle at the same time.

We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to John and Anne Warfield.

_________________________ H ERSCHEL P ICKENS F RANKS , J.