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Law Update

Accident Victim Who Was Struck By Hit & Run
Vehicle After Being Thrown From His Motorcycle
Was Not “Occupying” The Motorcycle For Purposes
Of His Automobile Policy’s Owned Vehicle Exclusion
Estate of Miller v. Amica Mutual Insurance Company,
No. 2006-904 (August 28, 2007)

Facts: The decedent was the victim of a hit-and-run accident on Interstate 495 in Massachusetts. He was riding his motorcycle when he got caught in a rut in the road, causing him to be thrown from the motorcycle.  He landed about forty feet away from the motorcycle, where he remained for 30 to 90 seconds.  While he was lying in the roadway, he was struck by a hit-and-run vehicle and later died from his injuries.
Amica had issued an automobile insurance policy covering a Jeep Cherokee owned by the decedent.  The policy provided uninsured motorist coverage and
included a hit-and-run vehicle within its definition of “uninsured motor vehicle.”   However, the policy contained an owned vehicle exclusion which precluded coverage for injuries sustained by an insured “while occupying, or when struck by, any motor vehicle owned by that insured which is not insured for this coverage under this policy.”  The policy defined “occupying” as “in, upon, getting in, on, out or off” of a vehicle. 

The estate brought a declaratory judgment action seeking a determination that it was entitled to uninsured motorist benefits under the Amica policy.  The parties filed cross motions for summary judgment.  The issue before the court was whether the decedent was “occupying” the motorcycle for purposes of the owned vehicle exclusion.  The trial court granted summary judgment in favor of the estate, ruling that, whether one viewed the circumstances in terms of distance or time, the decedent was no longer “occupying” the motorcycle when he was struck by the hit-and-run vehicle. 

Amica appealed, arguing that the decedent was “occupying” the motorcycle because he had not yet severed his connection to the motorcycle and had not yet reached a place of safety. 

Held:   Affirmed. 

The decedent was not “occupying” the motorcycle as defined by the Amica policy since he was not “in, upon, getting in, on or off” the motorcycle according to the Supreme Court, because he had been lying several feet away from the motorcycle for several seconds at the time he was struck by the oncoming vehicle, and therefore had severed his connection with the motorcycle. 

The Court noted that the insurer could have written the policy to exclude coverage for injuries “arising out of the use of” any motor vehicle which is not insured under the policy, but did not do so.  The “plain language” of the policy’s owned vehicle exclusion and its definition of “occupying” required a finding in favor of coverage.


Mike Wallenius




Attorneys at Law

1838 Elm Street, Manchester, NH 03104
Ph 603.634.4300 - Fax 603.626.3647

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