TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY v. JEFF A. STURROCK (Majority)

SUPREME COURT CASES

Laws-info.com » Cases » Texas » Supreme Court » 2004 » TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY v. JEFF A. STURROCK (Majority)

State: Texas

Court: Supreme Court

Docket No: 02-0069

Case Date: 08/27/2004

Judge: Priscilla R. Owen

Plaintiff: TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY

Defendant: JEFF A. STURROCK (Majority)

Preview:TEXAS FARM BUREAU MUTUAL INSURANCE
COMPANY v. JEFF A. STURROCK (Majority)
MAJORITY | DISSENTING
IN THE SUPREME COURT OF TEXAS
No. 02-0069
Texas Farm Bureau Mutual Insurance Company, Petitioner,
v.
Jeff A. Sturrock, Respondent
On Petition for Review from the
Court of Appeals for the Ninth District of Texas
Argued on April 16, 2003
Justice Owen, joined by Justice Hecht, Justice Wainwright, and Justice Brister, dissenting.
The average person would not think that tripping over the threshold of a pickup truck=s door while exiting is a Amotor
vehicle accident.@ Because the Court does not give these words their commonly understood meaning, I respectfully
dissent.
I
This case was submitted to the trial court on stipulated facts. Sturrock had been driving his truck. He stopped the
vehicle, parked, and turned off the ignition. The parties= agreed statement of facts says, ASturrock then turned and
opened the door, and as he was exiting the vehicle, his left foot somehow became entangled, and he almost slipped
and fell and caught himself, and that is when he felt the burning in his neck and shoulder area. The exiting the vehicle
[sic] caused him to do that.@ In describing the incident further, the agreed statement of facts said, A[h]e hung his foot
on the raised portion of the door facing on his truck,@ ASturrock somehow injured his neck, shoulder, and upper back
as he was getting out of his pick-up,@ and ASturrock=s injury on April 10 was not caused by an impact between any
portion of his body and any portion of his pickup.@
The personal injury protection (PIP) provisions of Sturrock=s policy say:
A. We will pay Personal Injury Protection benefits because [of] bodily injury:
1. resulting from a motor vehicle accident; and
2. sustained by a covered person.
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C. ACovered person@ as used in this Part means:
1. You or any family member:
a. while occupying; or
b. when struck by;
a motor vehicle designed for use mainly on public roads or a trailer of any type.
2. Any other person while occupying your covered auto with your permission.
The trial court concluded that Sturrock=s injuries were covered. A divided court of appeals affirmed.[1]
There is no dispute that Sturrock is a Acovered person.@ The parties so stipulated. There is no dispute that Sturrock
was occupying a motor vehicle at the time of his injury. But coverage under the PIP provisions does not attach simply
because an insured was injured A[w]hile occupying@ a covered motor vehicle. A[B]odily injury@ must Aresult[]
from a motor vehicle accident.@
This Court had occasion in Farmers Texas County Mutual Insurance Co. v. Griffin[2] to construe the term Aauto
accident.@ Royal, the insured, was driving a vehicle when his two passengers fired gun shots and wounded Griffin in
the leg as he walked down a street. Griffin alleged negligence and gross negligence. The issue was whether Royal=s
insurer was required to defend or indemnify him.[3] Royal=s policy said that the insurer A>will pay damages for
bodily injury or property damage for which any covered person becomes legally responsible because of an auto
accident.=@[4] Coverage extended to A>you or any family member for the ownership, maintenance, or use of any
auto or trailer.=@[5] We held that the term Aauto accident@ is not ambiguous.[6] Quoting State Farm Mutual
Insurance Co. v. Peck,[7] we said, A>The term Aauto accident@ refers to situations where one or more vehicles are
involved with another vehicle, object, or person.=@[8] We held, ATo read Griffin=s petition as alleging an >auto
accident= would strain that term beyond any reasonable meaning.@[9] Griffin=s injuries were not from an auto
accident, but from a drive-by shooting, even though the shooter was using a covered vehicle for transportation at the
time of the shooting.
The Peck decision, cited in Griffin, is instructive. Salazar was a passenger in Peck=s vehicle while Peck, the insured,
was taking her dog from a groomer to a veterinarian. Salazar was sitting in the back seat with the dog when the dog bit
him, inflicting severe lacerations to his face.[10] The insurer sought a declaratory judgment that it had no obligation to
defend Peck in Salazar=s suit against her.[11] The policy provided that the insured A>will pay damages for bodily
injury or property damage for which any covered person becomes legally responsible because of an auto
accident.=@[12] The court of appeals held that the term Aauto accident@ was unambiguous, and that it must apply
that term=s Aordinary and generally accepted meaning.@[13] The court of appeals concluded Athat the ordinary and
generally accepted meaning of the term >auto accident= refers to situations where one or more vehicles are involved in
some type of collision or near collision with another vehicle, object, or person.@[14] It then said, A[f]urthermore, we
are persuaded that the automobile must, in some manner, be involved in the accident,@ and A[t]he mere fact that an
accident takes place in or near an automobile does not mean the accident was an >auto accident.=@[15]
The ordinary, generally accepted meaning of Amotor vehicle accident@ does not call to mind tripping over the
threshold of a vehicle while exiting, notwithstanding a decision from a court of appeals more than thirty years ago,
which held that injury had occurred in a motor vehicle accident when an insured with phlebitis in his leg Awas
favoring it as he twisted in order to get out of the car and as he did so his right knee caught and the cartilage
snapped.@[16] This Court=s decision in Mid-Century Insurance Co. of Texas v. Lindsey[17] does not hold otherwise.
The Lindsey case construed another section of the Texas standard auto policy, the uninsured/underinsured motorist
provision.[18] Lindsey was the insured. He was sitting in a car parked next to Metzer=s truck when Metzer=s nine-
year-old son attempted to climb into the cab of the truck through its sliding rear window and caused a gun on a gun
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rack mounted over the rear window to discharge. Lindsey was struck by the gunshot. After the $20,000 limits of
Metzer=s policy were paid, Lindsey sued his insurer under the uninsured/underinsured motorist provisions. The policy
provided:
AWe will pay damages which a covered person is legally entitled to recover from the owner or operator of an
uninsured [or underinsured] motor vehicle because of bodily injury sustained by a covered person, or property damage,
caused by an accident.
The owner=s or operator=s liability for these damages must arise out of the ownership, maintenance or use of the
uninsured [or underinsured] motor vehicle.@[19]
The Court=s decision in Lindsey primarily focused on the A>arise out of the ownership, maintenance or use of the . . .
motor vehicle=@ language.[20] We examined decisions from this[21] and other[22] jurisdictions that had considered
the meaning of Aarose out of the use of a motor vehicle.@ We then looked, in particular, at situations in which a gun
was involved and whether and under what circumstances the discharge of a firearm Aarose out of the use@ of a
vehicle.[23] We concluded that ALindsey=s injury arose out of the use of the Metzer truck@ because AMetzer=s
son=s sole purpose was to gain entry into the truck to retrieve his clothing.@[24] He was not playing with the gun,
trying to shoot it, or load or unload it.[25] He was using the vehicle Aqua vehicle, rather than simply as an article of
property,@[26] and his use of the underinsured vehicle injured the insured.
In the instant case, the policy provision at issue does not contain the broad Aarise out of the ownership, maintenance or
use of the . . . motor vehicle@ language. The policy instead says that coverage applies only if there is Abodily injury:
resulting from a motor vehicle accident@ while a covered person is Aoccupying@ or Astruck by@ a motor vehicle.
Sturrock=s injury occurred when he was alighting from his vehicle. But that does not answer the question of whether
his injury was one Aresulting from a motor vehicle accident,@ as the PIP provisions of his policy require.
In Lindsey we only briefly discussed what constitutes an Aauto accident.@[27] The policy provision required that the
injury result from Aan accident.@ There was no question that the shooting in Lindsey was Aan accident.@ We
explained that the boy Adid not intend to cause the shotgun to discharge or Lindsey to be injured, nor was it
reasonably foreseeable that either consequence would result from the boy=s trying to enter the pickup through the rear
window.@[28] But the insurer argued that Aaccident@ should be read to mean Aauto accident.@ In addressing that
argument, we assumed, without deciding, that the term Aaccident@ as used in the uninsured/underinsured motorist
policy provision could be limited to an Aauto accident.@ We then cited our decision in Griffin, quoting its holding
that A>[t]he term >auto accident= refers to situations where one or more vehicles are involved with another vehicle,
object, or person.=@[29] We then concluded that A[n]othing in the language or holding of either case suggests that an
>auto accident= requires a collision or excludes occurrences like the one in this case.@[30]
Nothing in Lindsey suggests that the mere fact that an accident took place in an automobile means that it was an Aauto
accident.@ To the contrary, we cited Peck with approval for the proposition that when a vehicle is merely the situs of
the injury, there is no Aauto accident.@[31] We approved the rationale in Peck, affirming Athat a dog bite inflicted
while the victim was in a car was not an auto accident.@[32] The vehicle in Peck was being used for transportation
when the dog bite occurred, and it was certainly an accident from the insured=s point of view. But the vehicle was
merely the location of an accident that could have occurred anywhere, just as Sturrock in the case presently before us
could have tripped and injured himself in many locales other than his parked truck. By contrast, the accidental shooting
in Lindsey could only have occurred from use of the Avehicle qua vehicle.@[33] The shotgun was on a gun rack
mounted to the vehicle, and the boy came into contact with it when he was attempting to retrieve his clothing stored in
the vehicle. We said that A>[i]f the discharge or incident could have occurred regardless of the vehicle, the courts
seem to be consistent in holding there is no coverage.=@[34] Accordingly, we said that if the boy had been handling
the gun while in the vehicle and it had accidentally discharged, there would have been no coverage.[35] We
recognized in Lindsey that the question of whether there was even a use of a motor vehicle was Aa close case,@[36]
as evidenced by the numerous, sometimes conflicting decisions from other jurisdictions.[37]
The Court today cites five cases from other jurisdictions that find coverage when an insured is injured entering or
exiting a vehicle or is injured near a vehicle.[38] But the policy language in each of these cases is different from
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Texas=s standard PIP provision. Each of the policy provisions afforded broader coverage than Texas=s PIP provision,
and most importantly, none of the policy provisions in those cases required an auto or motor vehicle accident as a
prerequisite to coverage.[39]
The Court cannot convincingly distinguish the decisions that do deal with policies that require an auto or motor vehicle
accident in order for coverage to apply. In Farmers Insurance Co. of Washington v. Grelis,[40] which was cited and
relied on in Peck,[41] the policy provided coverage A>for injury to each insured person caused by an automobile
accident.=@[42] The policy defined Aaccident@ as A>a sudden event . . . resulting in bodily injury neither expected
nor intended by the insured person.=@[43] The policy defined A>injured person=@ as A>an insured person who is
injured by accident while occupying or being struck by an automobile.=@[44] The insured was in his van, parked on
the side of a boulevard when he allowed a stranger to enter and was then robbed. The robber tripped on a part of the
front seat of the van, which caused him to lunge forward and stab the insured. The robber then ordered the insured to
drive away. The Washington court held this was not an Aautomobile accident.@[45] That court reasoned that A[t]he
fact that the van seats were incidentally involved does not convert this incident into an >automobile accident.=@[46]
The court concluded that Acases construing the words >arising out of the ownership, maintenance, or use of the owned
automobile,= a phrase which is common in many insurance policies . . . [are] of no value because that language does
not appear in the endorsement in question.@[47]
Subsequently, the Washington Supreme Court had occasion to construe the term Amotor vehicle accident@ when used
in a policy. The policy provided coverage for A>bodily injury to each insured person caused by a motor vehicle
accident.=@[48] The insured owned a camper affixed to his pickup. When he purchased the camper, it included an
unattached wooden object intended as a step to facilitate entering and exiting. The insured was injured when he was in
a park for overnight camping and exited the camper. He Astepped down from the truck=s tailgate onto the unattached
wooden step that had been placed on the ground. The step somehow gave way, causing [the insured] to fall. In falling,
his arm caught on the edge of the tailgate, cutting it.@[49] The Washington court held this was not a motor vehicle
accident.[50] The court gave several examples of injuries that might occur while entering or exiting a vehicle that
would not Acomport with the plain, ordinary, and popular meaning of that term,@ including entering and exiting
pickups and sport utility vehicles.[51] The court said:
An image that easily comes to mind is an insured tripping while making the oft-difficult step down from the high
doorway of a pickup truck or sports utility vehicle. Another is trippingCover, say, the threshold or a seatbeltCwhile
entering a vehicle. Making all such accidents Amotor vehicle accidents@ for insurance purposes is a logical extension
of the Court of Appeals= holding that Athe use of a vehicle depends on an insured=s ability to safely enter and exit
it.@ However, this definition does not fit with Aa fair, reasonable, and sensible construction as would be given to the
contract by the average person purchasing insurance.@ Nor would this construction of the term Amotor vehicle
accident@ comport with the plain, ordinary, and popular meaning of that term.[52]
The Washington Supreme Court correctly discerned that there are quite a number of insurance policies that use
language much broader than Abodily injury resulting from a motor vehicle accident,@ which is the language in the
Texas personal injury protection provisions. Cases construing policies with broader language, including those relied
upon by the Court in this case, are inapposite when faced with a policy that requires a Amotor vehicle accident@ or
Aauto accident.@
Even when the language is broader and does not require an auto or motor vehicle accident, courts are divided on what
is and is not covered. Courts have found no coverage under policy provisions covering (or directed by statute to cover)
injuries incurred when Aoccupying, entering into, alighting from or using an automobile,@[53] or from the Ause of
the automobile . . . while in or upon, entering or alighting from the automobile,@[54] or Aarising out of operation,
maintenance or use@ of a vehicle,[55] or Aarising out of the maintenance or use@ of a vehicle,[56] or simply
Aarising out of the use@ of a vehicle.[57] Conversely, coverage has been found when a policy covers (or is required
by statute to cover) injury Aarising out of the ownership, maintenance or use@ of a vehicle,[58] or Aarising out of
maintenance or use@ of a vehicle,[59] or Awhile occupying@ a vehicle,[60] or Awhile alighting@ a vehicle,[61] or
simply Aarising out of use@ of a vehicle.[62]
To bolster its conclusion that Sturrock=s injuries come within the PIP provision, the Court cites a number of decisions
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that hold there is coverage when a vehicle collides with someone entering or exiting a covered vehicle.[63] But no one
questions that there has been an auto or motor vehicle accident when a vehicle strikes a pedestrian.
The Court cites two Texas cases to support its holding. One is Southern Surety Co. v. Davidson,[64] in which the
policy did not require an auto or motor vehicle accident. The policy was not even an automobile liability policy. It
covered A>[t]he effects resulting exclusively of all other causes from bodily injury sustained by the insured during the
life of this policy solely through external, violent and accidental means.=@[65] The other case cited by the Court is
Berry v. Dairyland County Mutual Insurance Co. of Texas in which the court of appeals concluded Athe phrase
>motor vehicle accident= can be construed as having more than one meaning@ and that it was therefore the court=s
Aduty . . . to give the phrase the construction that is most favorable to the insured.@[66] As discussed above, this
Court has since held that the term Aauto accident@ is unambiguous,[67] and Berry=s holding is therefore unsound.
II
Sturrock contends that the policy=s provision requiring a Amotor vehicle accident@ as a prerequisite for coverage
contravenes the statute that governs PIP provisions in Texas.[68] I disagree. First enacted in 1973,[69] that statute
requires automobile liability insurance policies to offer PIP coverage.[70] It says,
No automobile liability insurance policy, including insurance issued pursuant to an assigned risk plan established under
authority of Section 35 of the Texas Motor Vehicle Safety Responsibility Act, covering liability arising out of the
ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless
personal injury protection coverage is provided therein or supplemental thereto.[71]
The statute=s definition of Apersonal injury protection@ is detailed, but it does not specify whether merely Aan
accident@ will trigger coverage or whether a Amotor vehicle accident@ is required.[72] The statute uses the term
Athe accident@ six times, and the phrase Athe date of accident@ once, without expressing whether Athe accident@
contemplates, or does not contemplate, an automobile or motor vehicle accident:
(b) APersonal injury protection@ consists of provisions of a motor vehicle liability policy which provide for payment
to the named insured in the motor vehicle liability policy and members of the insured=s household, any authorized
operator or passenger of the named insured=s motor vehicle including a guest occupant, up to an amount of $2,500 for
each such person for payment of all reasonable expenses arising from the accident and incurred within three years
from the date thereof for necessary medical, surgical, X ray and dental services, including prosthetic devices, and
necessary ambulance, hospital, professional nursing and funeral services, and in the case of an income producer,
payment of benefits for loss of income as the result of the accident; and where the person injured in the accident was
not an income or wage producer at the time of the accident, payments of benefits must be made in reimbursement of
necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care
and maintenance of the family or family household. The insurer providing loss of income benefits may require, as a
condition of receiving such benefits, that the insured person furnish the insurer reasonable medical proof of his injury
causing loss of income. The personal injury protection in this paragraph specified shall not exceed $2,500 for all
benefits, in the aggregate, for each person.
(c) The benefits required by this Act shall be payable without regard to the fault or non fault of the named insured or
the recipient in causing or contributing to the accident, and without regard to any collateral source of medical, hospital,
or wage continuation benefits. An insurer paying benefits pursuant to this Act shall have no right of subrogation and
no claim against any other person or insurer to recover any such benefits by reason of the alleged fault of such other
person in causing or contributing to the accident.
(d) All payments of benefits prescribed under this Act shall be made periodically as the claims therefor arise and
within thirty (30) days after satisfactory proof thereof is received by the insurer subject to the following limitations:
(1) The coverage described in this Act may prescribe a period of not less than six months after the date of accident
within which the original proof of loss with respect to a claim for benefits must be presented to the insurer.[73]
The decision in Le v. Farmers Texas County Mutual Insurance Co. considered whether this statute permitted the State
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Board of Insurance to promulgate a policy that required a Amotor vehicle accident@ and concluded that it did.[74]
That court reasoned that A[i]t is likely that the statewide cost for injuries which happen to occur in a car is higher than
the cost of paying for injuries which result from a motor vehicle accident.@[75] It gave deference to the Board,
concluding, A[w]e do not find the Board=s construction repugnant to the statute.@[76] The court of appeals disagreed
with Berry v. Dairyland County Mutual Insurance Co., which had decided, in resolving a venue plea, that the term
Amotor vehicle accident@ was repugnant to article 5.06-3.[77]
The reasoning in Le v. Farmers Texas County Mutual Insurance Co. is sound. It is certainly reasonable and permissible
under article 5.06-3 for a policy providing personal injury protection to require the occurrence of a Amotor vehicle
accident@ before coverage is applicable. The coverage afforded under article 5.06 3(c) is in addition to any other
insurance coverage, including medical insurance.[78] An insurer paying personal injury protection coverage has no
right of subrogation for the fault of another person in causing or contributing to Athe accident.@[79] Article 5.06-3
does not prohibit automobile policies issued in this state from requiring that the injuries be sustained as a result of a
Amotor vehicle accident.@
* *
We are constrained by the policy=s language. Sturrock=s injuries did not constitute Abodily injury . . . resulting from a
motor vehicle accident.@ I would reverse and render judgment for the insurer in this case.
Priscilla R. Owen
Justice
OPINION DELIVERED: August 27, 2004
[1] 65 S.W.3d 763.
[2] 955 S.W.2d 81 (Tex. 1997).
[3] Id. at 81.
[4] Id. at 82.
[5] Id.
[6] Id. at 83.
[7] 900 S.W.2d 910, 913 (Tex. App.BAmarillo 1995, no writ).
[8] 955 S.W.2d at 83. We omitted the words Ain some type of collision or near collision@ from this quote, without
indicating the omission. The statement in Peck was: A[T]he term >auto accident= refers to situations where one or
more vehicles are involved in some type of collision or near collision with another vehicle, object, or person.@ 900
S.W.2d at 913.
[9] 955 S.W.2d at 83.
[10] Peck, 900 S.W.2d at 911.
[11] Id. at 912.
[12] Id. at 911-12.
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[13] Id. at 913.
[14] Id.
[15] Id.
[16] Berry v. Dairlyland County Mut. Ins. Co. of Tex., 534 S.W.2d 428, 429 (Tex. Civ. App.BFort Worth 1976, no
writ).
[17] 997 S.W.2d 153 (Tex. 1999).
[18] Id. at 154.
[19] Id. at 155 (alteration in original).
[20] Id. at 156-64.
[21] Id. at 156 n.11, 157 n.18.
[22] Id. at 157 n.21.
[23] Id. at 157-61 & nn.21, 25 & 26.
[24] Id. at 158.
[25] Id.
[26] Id. at 156.
[27] Id. at 155-56.
[28] Id. at 155.
[29] Id. (quoting Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997) (quoting State Farm
Mut. Ins. Co. v. Peck, 900 S.W.2d 910, 913 (Tex. App.BAmarillo 1995, no writ) (words omitted from Peck by Griffin
not indicated in the text of Griffin))).
[30] Id. at 156.
[31] See id.
[32] Id.
[33] Id.
[34] Id. at 159 (alteration in original) (quoting 8 Couch on Insurance 3d ' 119:64, at 119-98 (1997)).
[35] Id.
[36] Id.
[37] Id. at 157 n.21, 158 n.22, 159 n.25, 161 n.26, 162 nn.27-30.
[38] See __ S.W.3d at __ n.__.
[39] See Walker v. M&G Convoy, Inc., No. CIV.A.88C-DE-191, 1989 WL 158511, at *1 (Del. Super. Ct. Nov. 2,
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1989) (finding coverage when statute provided that PIP coverage shall apply to each person Aoccupying a motor
vehicle@ and plaintiff slipped and fell on ice while walking around his employer=s car trailer, onto which he was
loading new cars, the engine was running and plaintiff was preparing to travel with the loaded trailer); Padron v. Long
Island Ins. Co., 356 So.2d 1337, 1338-39 (Fla. Dist. Ct. App. 1978) (finding coverage when PIP statute said A>bodily
injury . . . arising out of the ownership, maintenance, or use of a motor vehicle=@ and insured=s foot slipped as he
was exiting the vehicle Acausing his right leg to hit the bottom part of the car door and break his leg. The plaintiff did
not slide out of the car, but injured himself on the car door threshold as he was alighting therefrom.@); Putkamer v.
Transamerica Ins. Corp. of Am., 563 N.W.2d 683, 686 (Mich. 1997) (finding coverage under statute requiring coverage
forA>accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a
motor vehicle=@ and the statute said A>[a]ccidental bodily injury does not arise out of the ownership, operation,
maintenance, or use of a parked vehicle as a motor vehicle unless . . . [T]he injury was sustained by a person while
occupying, entering into, or alighting from the vehicle=@ when the insured fell on ice as she placed her foot on the
floor board of her car (alteration and emphasis in original)); Haagenson v. Nat=l Farmers Union Prop. & Cas. Co., 277
N.W.2d 648, 650-51 (Minn. 1979) (finding coverage under statute that required coverage for A>injury arising out of
the maintenance or use of a motor vehicle=@ and the policy said A>[m]aintenance or use of a motor vehicle=@
includes use A>[i]ncident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it=@
when passenger accompanied a friend to the scene of an accident and was electrocuted by a downed power line as he
was opening the door of his vehicle (alterations added)); Hill v. Metro. Suburban Bus Auth., 555 N.Y.S.2d 803, 805
(N.Y. App. Div. 1990) (finding coverage under statute covering A>use or operation=@ of a bus when the bus door
caught the plaintiff=s arm and she tripped on a nail or tile on the staircase of the bus, lost her footing, and fell to the
sidewalk).
[40] 718 P.2d 812 (Wash. Ct. App. 1986).
[41] 900 S.W.2d at 913.
[42] Grelis, 718 P.2d at 813.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id. at 814.
[48] Tyrrell v. Farmers Ins. Co. of Wash., 994 P.2d 833, 835-36 (Wash. 2000).
[49] Id. at 835.
[50] Id. at 838.
[51] Id. at 837.
[52] Id. (citations omitted); see also State Farm Mut. Auto. Ins. Co. v. Rains, 715 S.W.2d 232, 233 (Ky. 1986) (finding
that there was no Amotor vehicle accident@ in two separate, consolidated cases when, in the first case, the insured was
hit in the head by an assailant with a baseball bat while trying to enter his vehicle, and in the second case, when the
insured was in a vehicle that overturned when the driver was shot and killed, and the insured was shot while crawling
out of the vehicle); Jordan v. United Equitable Life Ins. Co., 486 S.W.2d 664, 666 (Mo. Ct. App. 1972) (finding no
coverage under a policy that required Aaccidental bodily injury@ caused Asolely by reason of an automobile . . .
accident@ when the insured taxicab driver was robbed and shot to death by his passenger); but see Ganironv. Haw.
Ins. Guar. Assoc., 744 P.2d 1210, 1212 (Haw. 1987) (finding coverage under policy that required a Amotor vehicle
accident@ for insured who was struck by a bullet from a gun fired from another vehicle on the freeway); Union Mut.
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Fire Ins. Co. v. Commercial Union Ins. Co., 521 A.2d 308, 310 (Me. 1987) (finding coverage under policy that
required an Aauto accident@ when on hunting trip, insured=s shotgun accidentally discharged, injuring passenger,
when insured reached for the gun, which was in the back seat); State Capital Ins. Co. v. Nationwide Mut. Ins. Co., 350
S.E.2d 66, 67 (N.C. 1986) (finding coverage under policy that required Abodily injury . . . for which any covered
person becomes legally responsible because of an auto accident@ when passenger was injured when a rifle
accidentally discharged as the insured reached into the vehicle to retrieve a gun; rifle was not stored in a gun rack, but
in a storage area behind the driver=s seat).
[53] Kordell v. Allstate Ins. Co., 554 A.2d 1, 2 (N.J. Super. Ct. App. Div. 1989) (finding no coverage when PIP statute
said Asustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an
automobile@ and insured died of a heart attack while stopped at a red light).
[54] Ross v. Protective Indem. Co., 62 A.2d 340, 341 (Conn. 1948) (finding no coverage under policy that required
Abodily injury, caused by accident and arising out of the use of the automobile . . . while in or upon, entering or
alighting from the automobile@ when passengers exited from vehicle that had pulled onto the shoulder, went to the
rear of the vehicle to urinate, and were struck by another vehicle while conversing after urinating).
[55] Boykin v. State Farm Mut. Auto. Ins. Co., 393 S.E.2d 470, 471 (Ga. Ct. App. 1990) (finding no coverage when
statute said A>accidental bodily injury=@includes A>bodily injury . . . arising out of the operation, maintenance, or
use of a motor vehicle [as a motor vehicle] which is accidental=@ when insured slipped on wet oily pavement about
two feet from her car as she was approaching the vehicle after stopping at a convenience store for fueling); Cole v.
N.H. Ins. Co., 373 S.E.2d 36, 37, 38 (Ga. Ct. App. 1988) (finding no coverage when statute provided A>A a]ccidental
bodily injury@= means bodily injury . . . arising out of the operation, maintenance, or use of a motor vehicle. . .
>[o]ccupying= means to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting
from the motor vehicle. . . . >A[o]peration, maintenance, or use of a motor vehicle@= means operation, maintenance,
or use of a motor vehicle as a vehicle@ and insured slipped and fell while walking around her car after she had
pumped and paid for gasoline, striking her arm on the fender and her knee on the pavement).
[56] Marklund v. Farm Bureau Mut. Ins. Co., 400 N.W.2d 337, 338 n.2, 341 (Minn. 1987) (finding no coverage under
statute that said Ainjury arising out of the maintenance or use of a motor vehicle@ when insured slipped on ice and
fell on a self-service gasoline station=s concrete apron after filling and capping his car=s gas tank; insured did not
come into physical contact with the vehicle after completing the refueling operation, although he was walking toward
the passenger seat with the intention of getting a check from his wife to pay for the gas).
[57] Classified Ins. Corp. v. Vodinelich, 368 N.W.2d 921, 923 (Minn. 1985) (finding no coverage under policy that
required Aarising out of the use@ of a motor vehicle when children died of carbon monoxide poisoning when their
mother committed suicide by running the insured vehicle in an enclosed garage while leaving the door to the house
ajar).
[58] Padron v. Long Island Ins. Co., 356 So.2d 1337, 1338 (Fla. Dist. Ct. App. 1978) (finding coverage when PIP
statute said A>bodily injury . . . arising out of the ownership, maintenance, or use of a motor vehicle=@ and insured=s
foot slipped as he was exiting the vehicle Acausing his right leg to hit the bottom part of the car door and break his
leg. The plaintiff did not slide out of the car, but injured himself on the car door threshold as he was alighting
therefrom@).
[59] Blish v. Atlanta Cas. Co., 736 So.2d 1151, 1153, 1155 (Fla. 1999) (finding coverage under PIP policy provision
that required injury A>arising out of the ownership, maintenance, or use of a motor vehicle=@ when insured was
attacked by several assailants after his tire blew out and he stopped to change it); Hernandez v. Protective Cas. Ins.
Co., 473 So.2d 1241, 1242-43 (Fla. 1985) (finding coverage under PIP policy provision that required injury A>arising
out of the ownership, maintenance or use of a motor vehicle=@ when insured suffered injuries in the course of his
arrest for an alleged traffic violation; supreme court inferred insured was occupying the vehicle at the time); Barry v.
Ill. Farmers Ins. Co., 386 N.W.2d 299, 300-01 (Minn. Ct. App. 1986) (finding coverage under policy that said
A>maintenance or use of a motor vehicle=@ means A>maintenance or use of a motor vehicle as a vehicle, including,
incident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it=@ when insured backed
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vehicle out of her garage, got out to close the garage door with vehicle idling and slipped and fell on the ice as she
approached the car door to get back in); Jorgensen v. Auto-Owners Ins. Co., 360 N.W.2d 397, 399-401 (Minn. Ct.
App. 1985) (finding coverage when statute said A>all loss suffered through injury arising out of the maintenance or
use of a motor vehicle=@ and A>maintenance or use of an automobile=@ means A>maintenance or use of a motor
vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, and alighting
from it. Maintenance or use . . . does not include . . . loading and unloading the vehicle unless the conduct occurs while
occupying, entering into or alighting from it=@; plaintiff was burned when he caught fire after a can of gasoline
stored inside the trunk of his father=s car exploded as he was opening the trunk to retrieve some jumper cables;
plaintiff was not injured by the initial explosion; rather, he was injured when he reached in to remove the gas can,
fearing that the car would blow up or cause the gas station (where the car was) to explode, and he tipped or caught the
gasoline can on the trunk of the insured vehicle, causing gasoline to spill on himself; the parties stipulated that a
defective trunk wire ignited the gas fumes); Spisak v. Nationwide Mut. Ins. Co., 478 A.2d 891, 892 (Pa. Super. Ct.
1984) (finding coverage under policy that required losses sustained A>as a result of an accident that arises out of the
maintenance or use of a motor vehicle as a motor vehicle=@ when insured and a female companion died of carbon
monoxide poisoning in the backseat of the insured vehicle while engaging in sex acts with one another).
[60] Walker v. M&G Convoy, Inc., No. CIV.A.88C-DE-191, 1989 WL 158511, at *1 (Del. Super. Ct. Nov. 2, 1989)
(finding coverage when statute provided that PIP coverage shall apply to each person Aoccupying a motor vehicle@
and plaintiff slipped and fell on ice while walking around his employer=s car trailer, onto which he was loading new
cars, the engine was running, and plaintiff was preparing to travel with the loaded trailer).
[61] Mid-Continent Cas. Co. v. Giuliano, 166 So.2d 443, 445 (Fla. 1964) (finding coverage under PIP policy provision
that required Abodily injury . . . caused by accident while . . . alighting from@ the insured motor vehicle when insured
injured his back while exiting the insured motor vehicle).
[62] State Farm Mut. Auto. Ins. Co. v. Barth, 579 So.2d 154, 155 (Fla. Dist. Ct. App. 1991) (finding coverage under
PIP policy provision that required A>loss sustained . . . as a result of bodily injury . . . arising out of . . . use of a motor
vehicle=@ when insured was attacked by an assailant while sitting in her car, struggled free, and fell out the driver=s
door).
[63] __ S.W.3d at __ & n.__.
[64] 280 S.W. 336 (Tex. Civ. App.BFort Worth 1926, no writ).
[65] Id. at 336 (alteration added).
[66] 534 S.W.2d 428, 433 (Tex. Civ. App.BFort Worth 1976, no writ).
[67] Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997).
[68] Tex. Ins. Code art. 5.06-3.
[69] Act of April 11, 1973, 63d Leg., R.S., ch. 52, ' 1, 1973 Tex. Gen. Laws 90, 90-93.
[70] Tex. Ins. Code art. 5.06-3(a).
[71] Id.
[72] Id. art. 5.06-3(b)-(h).
[73] Id. art. 5.06-3(b), (c), (d)(1) (emphasis added).
[74] 936 S.W.2d 317, 323-24 (Tex. App.BHouston [1st Dist.] 1996, writ denied).
[75] Id. at 324.
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[76] Id.
[77] 534 S.W.2d 428, 431 (Tex. App.BFt. Worth 1976, no writ).
[78] Tex. Ins. Code ' 5.06-3(c).
[79] Id.
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