Do you ‘occupy’ a car while hanging onto the window, trying to stop an auto theft?

If you are hanging out the window of your car trying to stop a thief from stealing it, and you are injured while falling from the open window after being dragged for 40 feet, you are not an “occupant” of the car, Alberta’s Court of Appeal has ruled in an auto insurance claim.

The Appeal Court thus rejected the argument made by the auto insurer, Economical Mutual Insurance Company. The insurer argued the policy terms of Alberta’s SEF 44 endorsement on the driver’s auto policy excluded coverage for the injuries the car owner suffered during the heist.

Teresa D’Andrea was injured when she attempted to stop someone from stealing her car, notes the ruling, D’Andrea v Economical Mutual Insurance Company. When she realized what was happening, she ran towards the car and leaned into the open window. She was dragged by the moving vehicle for about 40 feet until she fell off.

Since the vehicle was being used without her consent, her auto insurance coverage depended on her being “struck” by the vehicle while not being an “occupant” of the vehicle. The trial judge found she was not an “occupant” of vehicle, but that she was “struck” by it, entitling her to coverage.

Economical appealed the decision, noting the policy definition of “occupant” is defined as “a person driving, being carried in or upon or entering or getting on to or alighting from an automobile.”

The insurer argued D’Andrea was an “occupant” because she was either “getting on to” the automobile, or was being “carried” by it.

The Appeal Court found she was neither “getting on to,” nor being “carried” by the car.

“The trial judge found as a fact that [D’Andrea] was merely attempting to get the attention of the thief to stop him from taking the car and did not intend to ‘get into’ the car while it was under the control of an unknown third person,” the Appeal Court ruled in its decision, released Tuesday. “This finding is entitled to deference on appeal.”

What’s more, the court confirmed that to be “carried” by a car would mean the same thing as getting transported by the car.

“It would not on a plain reading of the policy, taking into account that this is a policy of insurance, [be correct to] interpret the words ‘being carried upon’ to include being dragged beside a vehicle,” the Appeal Court wrote. “’Being carried upon’ would generally relate to someone being transported upon the car. There may be many circumstances where that may happen, where someone is upon the car, or sitting on the car, but this is not one of them.”

Finally, the court found, being dragged by a car in D’Andrea’s situation is equivalent to be “struck” by a car while not an occupant.

“The trial judge concluded…the ‘striking’ occurred when the driver ‘veered out into the street and accelerated the vehicle,’” the Appeal Court ruled. “The trial judge concluded that when [the driver] ‘set the car in motion, veering and accelerating [D’Andrea was] struck by that car in some fashion.’

“On this record, it was open to the trial judge to find as a fact that [D’Andrea] was ‘struck’ by her vehicle.”

Feature photo courtesy of iStock.com/MonikaBatich