INJURED PARTY ON MEDIAN IS COVERED AS CAR'S OCCUPANT

Personal Auto	Permissive Use
Underinsured Motorist	Occupying

The insured, Laura Etter, lent her 1984 Buick Regal to her grandson, Nathan Etter. As he drove along Interstate 775, which had become slippery due to the temperature and drizzling rain, the car slid off the pavement onto the median and came to a stop in the middle, about 20 feet off the road.

A state trooper stopped, and finding no one was injured, he and Nathan crossed the highway and got in the police car. The trooper called a tow truck and told Nathan to return to the Buick and wait for help. Shortly thereafter, a Mazda also slid off the road into the median. Nathan went over to see if anyone was hurt, and a few minutes later, the state trooper returned. He asked Nathan to help him push the Mazda out of the median. As they were trying to do so, a Toyota slid off the pavement and struck Nathan, causing serious injuries.

The Buick was insured by Travelers, but the Toyota, driven by Min Chun Ling, was an underinsured vehicle. Nathan filed a claim under his grandmother's policy, and when it was denied, an action was filed to recover under the UIM portion of her policy.

The parties stipulated that Nathan was not a named insured under his grandmother's policy. He contended that he was "occupying" the Buick at the time of the accident. The trial court said that was the only issue.

On appeal, the higher court noted that the courts had been confronted with numerous situations requiring determinations as to whether a claimant was, or was not, occupying the insured car.

The trial court found that, based on those decisions, Nathan was within a reasonable distance from the Buick, and that helping another motorist was within the normal use of that vehicle.

The higher court concluded that Nathan would not have been injured if the Buick had not slid off the road and he had not been forced to wait for help. He was waiting for a tow truck at the time he was struck. Furthermore, he was still in the median, and that was not a place of safety in view of the icy conditions. The court found that Nathan "had not yet reached a place of safety when he was struck."

The trial court finding that Nathan was "occupying" the Buick and that his grandmother's policy covered his injuries was affirmed.

Etter v. Travelers Insurance Companies, Appellant--No. 94- CA-51--Court of Appeals of Ohio, Second District, Miami County--March 31, 1995--657 North Eastern Reporter 23d 298.