Opinion
C.A. No. 00C-12-005 WCC.
Submitted: January 16, 2002.
Decided: April 26, 2002.
On Defendant's Motion for Partial Summary Judgment. Granted.
On Plaintiff's Motion for Partial Summary Judgment. Denied.
Glen C. Ward, Wilmington, Delaware, Attorney for Plaintiff, Irvin Waite.
Louis Rizzo, Reger Rizzo, Wilmington, Delaware, Attorney for Defendant, Continental National Indemnity.
MEMORANDUM OPINION
Irvin Waite (hereinafter "Plaintiff") and Continental National Indemnity (hereinafter "Defendant") have filed cross motions for summary judgment pursuant to Superior Court Civil Rule 56. The case involves no fault automobile insurance, which is mandated by 21 Del. C. § 2118(c). The statute requires motor vehicles registered in Delaware to carry personal injury protection (hereinafter "PIP") benefits for "each person occupying such motor vehicle." In this case, the Court must determine whether Plaintiff can satisfy at least one of two tests required for the definition of an occupant for PIP coverage. For the reasons set forth below, Defendant's motion for partial summary judgment is granted.
21 Del. C. § 2118(c).
FACTS
There is no dispute as the facts. Plaintiff was an oil delivery truck driver, who was making an oil delivery on November 11, 1998. Plaintiff's oil truck included an oil tank that held 2,800 gallons of oil, and a 150 foot hose. On that day, Plaintiff was making a residential oil delivery and when he arrived at the location, he put on the air brakes and activated the PTO. A PTO is a device that facilitates the ability to pump oil from the truck to the residence and when the PTO is activated, the truck is unable to be driven. With the truck's engine still running, Plaintiff proceeded to the rear of the truck, opened a compartment where he must insert a ticket into a meter and engage the PTO. He then grabbed the hose, placed it over his left shoulder and began to walk briskly towards the house when suddenly he fell hard on his right side. Plaintiff was not able to determine exactly how far he fell from the truck, but he had clearly walked a distance sufficient to prevent him from touching the truck or to use the vehicle to stabilize himself during the fall.
Plaintiff asserts that he has met the definition of an "occupant" to be eligible for PIP benefits. He first argues that because he was holding the hose attached to the vehicle when he was injured, he qualifies for PIP benefits under the "geographic perimeter" test, which according to Plaintiff, made the distance he walked away from the truck immaterial. In the alternative, Plaintiff claims that at the time of the accident, he was engaged in a task that related to the operation of the truck because the truck was running and the PTO was engaged. Thus, according to Plaintiff, he meets the definition of "occupant" and is eligible for PIP insurance benefits.
Id.
Defendant claims that Plaintiff does not qualify as an "occupant" of the vehicle because Plaintiff was not within a reasonable geographic perimeter of the vehicle. Defendant asserts that Plaintiff was not "in, entering, exiting, touching or within reach of the covered vehicle" and thus does not qualify for occupancy status under the reasonable geographic perimeter test. Additionally, Defendant claims Plaintiff was not engaged in a task that was related to the operation of the oil truck, because the truck was simply a "tool" Plaintiff used as part of his job-related tasks, and his actions were not involved in the operation of the vehicle.
DISCUSSION
This case is governed by the clear mandates of the Supreme Court of Delaware found in Selective Insurance Co. v. Lyons and Allstate, and National Union Fire Insurance Company of Pittsburgh v. Fisher. In Selective Insurance Co. v. Lyons, the Supreme Court articulated the bright line rule that "a person is an occupant of an insured vehicle if he or she is either (1) within a reasonable geographic perimeter of the vehicle or (2) engaged in a task related to the operation of the vehicle." In National Union Fire Insurance v. Fisher, the Court held that to be an "occupant" under the reasonable geographic perimeter prong, the injured person must be "in, entering, exiting, touching or within reach of the covered vehicle." In defining the phrase "engaged in a task related to the operation of a vehicle" the Court mindfully distinguished between job-related tasks, for which one's vehicle is an integral tool, and tasks that are directly related to the operation of one's vehicle. Tasks related to the operation of a vehicle include "pumping gas, checking the fasteners on a loaded trailer, changing a tire or jump-starting an engine." In its most recent opinions, the Supreme Court has clearly stated that there needs to be clear cut definition in what constitutes these two elements, and parsing words and meanings to permit some lawsuits, but deny others, does not contribute to a clear understanding of the phrases, "reasonable geographic perimeter" or "tasks related to the operation of the vehicle."
681 A.2d 1021 (Del. 1996).
692 A.2d 892 (Del. 1997).
Lyons, 681 A.2d at 1025; National Union Fire Insurance Co. v. Fisher, 692 A.2d 892, 896 (Del. 1997).
Fisher, 692 A.2d 892, 897(noting that being "within the reach of a covered vehicle is tantamount to touching the vehicle because a person within touching distance has as much control over the automobile as the person actually touching it." n. 18).
Fisher, 692 A.2d at 898(noting that "job-related tasks for which one's vehicle is an integral tool might include, for example: a delivery truck driver handing a package to a customer at his front door, a tow truck operator sweeping debris from a roadway, or an ambulance driver administering aid to a person on the roadside.").
Fisher, 692 A.2d at 898.
In this vein, the Court first finds that Plaintiff cannot satisfy the reasonable geographic perimeter test. The holding of a hose that happens to be attached to the vehicle is not within the reasonable definition of "touching" contemplated by the Supreme Court. Taking Plaintiff's argument to its extreme, Plaintiff in this case could have stretched the hose to its 150 foot limit and he would still be "touching" the vehicle. It is such logic that would muddy the Court's attempt to create clear, definitive terms that litigants and insurers can rely upon. Thus, the Court must decide if Plaintiff's actions have met the second prong of the test.
Plaintiff's situation is similar to Lyons, but is not identical. In Lyons, the police officer was engaged in filling up his gas tank when he was hit. He was in that instance, obviously engaged in a task (pumping gasoline into his car) related to the operation of his vehicle (without gasoline, his car would not operate). In this case, Plaintiff was arguably engaged in a task related to the operation of his vehicle, but the task at hand did not involve doing something to his vehicle to enable it to move, such as putting gasoline into the truck, fixing a flat tire, changing the oil, or changing a tire. All of those examples, enable a vehicle to operate when it would not have otherwise. The difficult distinction in Plaintiff's situation centers on the fact that he was indisputably "operating" a mechanism that was an integral part of the truck and the insurer would appreciate the uniqueness of the vehicle in providing insurance. The truck's ignition was left on, the PTO was activated, Plaintiff was pulling the hose from the truck, and he was performing a function unique to that particular vehicle, when he was injured. All of these facts seem to warrant a conclusion that Plaintiff was indeed "engaged in a task related to the operation of his vehicle."
The Court can appreciate Plaintiff's argument, and agrees that the issue of whether or not Plaintiff was engaged in a task related to the operation of his oil truck is not clear cut. However, the Court finds that the term "operating" as contemplated by the Supreme Court is limited to those tasks clearly connected to the movement or driving of a vehicle and functions beyond this limitation are simply a job related task where in which one's vehicle may be an integral part. It is this last definition that best fits Plaintiff's conduct, and thus the Plaintiff has failed to meet either prong of the Supreme Court's test.
CONCLUSION
In this instance, there are no factual disputes. Plaintiff has failed to meet the definition of occupant, as he has failed to satisfy either the "reasonable geographic perimeter" test, or alternatively that he was "engaged in a task related to the operation of his vehicle." Thus, he does not qualify as an "occupant" of his vehicle for PIP benefits. As such, Defendant's motion for partial summary judgment is granted, and Plaintiff's motion for partial summary judgment is denied.
IT IS SO ORDERED.