What Is the Occupancy Status of a Claimant Who Is Thrown from a Motor Vehicle ?
In Dunlap v. United States Automobile Ass'n., 470 So. 2d 98 (Fla. 1st DCA 1985), the First District considered the plight of a motorcyclist who was thrown from his cycle during a collision and then run over by a taxi. His insurance policy provided personal injury protection benefits for injuries sustained by an insured while occupying a motor vehicle or while a pedestrian.
"Motor vehicle" was defined to exclude motorcycles.
The policy defined "pedestrian" as a "person while not an occupant of any self-propelled vehicle."
Similar to the uninsured motorist policy definition in this case, in Dunlap the policy defined "occupying" as "in or upon or entering into or alighting from."
The circuit court granted the insurer a summary judgment denying Dunlap's claim for PIP benefits.
The First District agreed with Dunlap's argument that a person is not precluded from recovering PIP benefits merely because just prior to the injury he had been operating a motorcycle.
Rather, the court wrote, the question whether the claimant's occupancy of the motorcycle was continuing at the time of his injury depends on "whether the facts will justify a determination that the 'occupancy' had terminated, and a new activity had commenced before the injury." Dunlap, 470 So. 2d at 99.
Applying that test, the court affirmed the summary judgment in favor of the insurer, concluding that the concept of occupying "would extend and apply to one who is injured upon being struck by a motor vehicle immediately following an accidental, involuntary ejection from the vehicle." Dunlap, 470 So. 2d at 100.
See also United States Fidelity & Guar. Co. v, Daly, 384 So. 2d 1350 (Fla. 4th DCA 1980) (holding that PIP claimant who was thrown from the open bed of a pickup truck and suffered injuries when he struck the road was injured "while occupying a motor vehicle").