Necessity is the mother of creative arguments for insurance coverage.  Clearly that was what drove the insured’s argument in Lavoie v. Peninsula Insurance Companies, No. 2018-0711 (N.H. Nov. 8, 2019).  It was not successful.  But the insured made the most of what it had to work with, which wasn’t a lot.

David Lavoie was struck by a vehicle while crossing the first of two streets between him and his insured vehicle.  He was covered only if he had been “occupying” the vehicle at the time of the accident.  The policy in fact defined “occupying,” which is “in, upon, getting in, on, out or off.”  I would have thought the definition was simpler -- “sitting in it.”  But, it was broader than that, which opened the door to Mr. Lavoie arguing that “occupying” a vehicle includes walking toward it.    

You are no wondering what the insured argued to make this leap: “Here, the plaintiff acknowledges that he severed his connection with the vehicle when he left it to go to dinner. He argues that he ‘reconnected’ with the vehicle when he finished dinner and began walking toward the vehicle to retrieve a tire that he had repaired at the request of one of his customers — a dinner companion — because his ‘physical orientation was in the direction of the Vehicle and his conscious attention was oriented on the Vehicle.’ He contends that whether he was ‘getting in’ the vehicle depends, not upon ‘a myopic review of the facts,’ but upon his, apparently subjective, ‘perspective on where he was going and what he was doing’ when injured.  He places no limit on how long one can be ‘vehicle oriented’ or on what one can do while being ‘vehicle oriented.’”

But the court concluded that Mr. Lavoie was not “occupying” the vehicle as he did not satisfy the “vehicle orientation” test: “This test requires that a claimant be engaged in an activity essential to the use of the vehicle when the accident occurs.  A claimant need not have physical contact with the vehicle to be ‘occupying’ it.  ‘Occupying’ may include the process of moving away from the vehicle to a ‘place of safety,’ but does not include the process of moving away from the vehicle when no unsafe condition exists.  If a claimant has severed connection to the vehicle, then the claimant is no longer occupying the vehicle.  To be ‘occupying’ a vehicle, the claimant must be ‘vehicle-oriented’ as opposed to ‘highway oriented’ or ‘sidewalk oriented.’  Subtle factual distinctions can make the difference in questions of coverage.”  (citations omitted).   

The court made the obvious observation that “plaintiff’s position would result in coverage any time a claimant was traveling toward the insured vehicle, regardless of how long the claimant journeyed before reaching the vehicle or what he did during the journey.”

While I didn’t think much of Mr. Lavoie’s argument, maybe I’m not much different.  When my wife asks me to clean out the attic, I respond that I am thinking about doing it.  And somehow I expect her to believe that that’s enough.