A Pedestrian’s Being Struck By A Motor Vehicle Did Not Give Rise To “Occupancy” During The Sequence In Which The Pedestrian Was In Physical Contact With The Vehicle

In Hahn v. GEICO Choice Insurance Co., 420 P.3d 1160 (Alaska 2018), the Alaska Supreme Court held that UIM benefits did not extend to a person falling on an insured vehicle after it struck him. In this case, the insured was sitting on his motorcycle while stopped at a traffic signal. The tortfeasor’s vehicle struck the insured’s motorcycle, throwing the insured backward onto the tortfeasor’s vehicle’s hood, windshield, and roof. The motorcyclist then landed on the pavement. Focusing on the “upon” language in the GEICO UIM coverage, the motorcyclist attempted to argue that he was an occupant of the tortfeasor’s vehicle which was insured by GEICO. The Alaska Supreme Court found this argument to be unreasonable. The Court found that the policy insured covered persons who were actually occupying the vehicle, and not persons who happened to be “upon” the insured vehicle. According to the Court, the concept of “occupying” meant “in, upon, getting into, or getting out of” in accordance with the policy’s language. When the phrase was read in context rather than in isolation, the term “upon” was a subset of “occupying.” The Court found that no reasonable person would come to the conclusion that the fortuity of where a person’s body bounced enroute to being thrown to the pavement allowed for UIM coverage attachment.