Driver Struck By His Own Car Did Not "Occupy" Vehicle, Rules Texas Court

United States Fidelity and Guaranty Co. v. Goudeau, #06-0987 (Tex. December 19, 2008), See Goudeau Opinion.

Louis Goudeau's pelvis was crushed when he was pinned against a highway retaining wall by his own vehicle that had just been hit by an underinsured negligent driver.  Goudeau had exited his car to help a stranded motorist when the accident occurred.  Negligent driver had no money and only $20,000 policy limits, so Goudeau sought additional underinsured-motorist insurance from his own (actually his employer's, but that is irrelevant) auto policy.  But to be covered, Goudeau had to be "occupying" his car, so this legal conundrum made its way through the courts to the Texas Supreme Court.

The policy defined "occupying" as "in, upon, getting in, on, out or off."  Goudeau admitted he had exited the car and walked around to the retaining wall behind his car, but by the end of the collision, he was pinned to the wall and partly straddled over his own vehicle.  Hence, he was "upon" his car.  This explanation sounded good to the lower court, but the high court put on its high hat and held that the interpretation was governed by "the traditional canon of construction noscitur a sociis ('a word is known by the company it keeps')," which means each word must be construed in context.

One may be "upon" a vehicle, continued the court, when one is in the bed of a pickup, "[b]ut a driver who has exited the car, closed the door, walked around the front, and then has the vehicle smashed into him cannot be said to be 'occupying' the vehicle at the time of the collision, even if afterward he ends up partly 'upon' it."  No underinsured-motorist coverage for you.

I fault the Court's decision not for the result, but for substituting a Latin maxim for sound reasoning.  This is a hard issue.  Indeed, the Court lists 12 different "tests" used by the various states to resolve this exact issue.  One can imagine situations in which drivers and passengers in horrendous multiple car smash ups get thrown all over the place end end up "upon" other vehicles they have no connection with.  Could they claim coverage from the insurer of the car they landed on?  From the cars they careened off of in the process of landing?  Probably not.

And the Court is not without sympathy ("One can imagine few more sympathetic litigants that Louis Goudeau, a 'Good Samaritan' who stopped his car on a Houston freeway to help a stranded motorist").  But the Court chose to remain true to Texas's "plain-and-ordinary-meaning test" and rested on noscitur a sociis.  Reading between the lines, the Court appears to draw the line at physical separation from the vehicle.  One can't exit and walk away from the vehicle and be said to occupy it until one returns to get back in.  Whatever the reason, practitioners of the law need clearer guidance on the basis for the decision.  As written, the rule might just as well have been: "rem nosco ubi video."  I know it when I see it.

By the way, the 12 tests cited in the decision are:

four-pronged test

three-pronged test;

position-of-safety test;

severed-relationship test

chain-of-events test

substantial-nexus test;

reasonable-relationship test;/span>

close-proximity test;

vehicle-orientation test;

close-proximity or vehicle-use test;

close-proximity and vehicle-use test; and last but not least,

plain-and-ordinary-meaning test.