A Debatable Preposition: Court Opines Upon "Upon"

When is a person "upon" an automobile?  Must there be some physical contact with the vehicle?  If not, how far from the vehicle can a person be and still be deemed "upon" it?  The California Court of Appeal for the Sixth District has produced an opinion elaborately parsing the meaning of "upon" as used in determining who is the insured for purposes of "underinsured motorist" coverage, concluding in the case before it that an injured person was "upon" a vehicle when standing a foot or so away from it but not "upon" his own vehicle parked 200 feet away.

Roberto Ruiz was driving a pickup truck owned by his employer, Fast UnderCar, and insured by American States Insurance Company.  Another motorist, Tavares, struck the pickup as well as a van owned by Group Manufacturing and insured by Atlantic Mutual Insurance Company.  Everyone pulled over and Ruiz, then uninjured, exited his pickup and walked approximately 200 feet to check on the condition of the driver of the van.  While conversing with the van driver and preparing to open the passenger door to allow the van's passenger to exit, Ruiz was struck and injured by another motorist, Alma Ogana.  Ogana was insured, but the limits of her coverage were significantly less than the $1 million limits available under both the American States and Atlantic Mutual policies for "underinsured motorist" coverage.  The issue before the court was whether Ruiz qualified as an insured under either or both of the policies.  The trial court concluded, and the Court of Appeal agreed, that Ruiz is insured under the policy on the van [Atlantic Mutual] but not under the policy on his employer's pickup truck [American States].

Both policies had identical language defining who is insured for purposes of the "underinsured motorist" coverage.  In each policy, the persons insured include anyone "occupying" the covered vehicle.  "Occupying,"' in turn, is defined to mean "in, upon, getting in, on, out or off."

Atlantic Mutual argued that Ruiz was not "upon" the van because he was standing outside of it when he was injured.  The courts, however, concluded after analyzing dictionary definitions and a series of earlier decisions that "upon" is reasonably open to being defined as being in close proximity, and that the term must be construed favorably to Ruiz.

In this case, Ruiz was positioned immediately adjacent to Group Manufacturing's van for reasons essentially related to the insured vehicle and its use on the highway. When struck by the underinsured vehicle, Ruiz was attempting to speak to the van's driver regarding the multi-vehicle accident that had just occurred and had just helped an injured passenger exit. In light of the principle that ambiguities in a policy are generally construed against the insurer [citation] and the underlying public purpose of the uninsured motorist statute, we conclude that under the stipulated facts Ruiz, who was standing only about a foot from Group Manufacturing's van, was 'upon' the van and qualified as an 'insured' within the meaning of Atlantic Mutual's UM coverage provisions.

As for the coverage on the pickup truck that Ruiz had been driving prior to the accident, the courts concluded that the walk he took from that vehicle to the van covered a sufficient distance that Ruiz simply cannot be said any longer to have been "upon" the vehicle he had been operating.

At some distance, an individual who exits a vehicle is no longer "upon" the vehicle in even a physical sense. Ruiz was approximately 200 feet, about two-thirds of a football field, away from the truck at the time he was struck by the underinsured motorist. Such a distance in no way qualifies as close proximity to the Fast UnderCar truck and a contrary conclusion would strain the meaning of the word "upon." "Words used in an insurance policy are to be interpreted according to the plain meaning which a layman would ordinarily attach to them. Courts will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists. [Citations.]"

The decision in Atlantic Mutual Ins. Co. v. Ruiz (Nov. 5, 2004), Case No. H025852, can be accessed at these links in PDF and Word formats. [Note: The links will expire in approximately 120 days; the opinion should still be accessible thereafter by substituting "archive" for "documents" in the URL.]