Can a driver be “occupying” a covered vehicle after the vehicle has driven away?

The Georgia Court of Appeals recently determined that an employee was not “occupying” a covered vehicle for purposes of uninsured motorist coverage. In Stanovich v. Axis Ins. Co., A22A0840, Melanie Stanovich filed suit against Axis contending Axis improperly denied uninsured motorist coverage. Axis filed a motion for summary judgment contending Stanovich was not using the vehicle at the time of the accident and the vehicle used by Stanovich was not a “temporary substitute vehicle for a covered vehicle.” The trial court agreed with Axis and granted summary judgment. Stanovich appealed.

To determine whether Stanovich was “occupying” the vehicle at the time of the accident, Georgia Court of Appeals looked at the facts. In September 2018, Stanovich, who was employed by Sky Rentals, LLC, drove her personal vehicle to meet her co-worker, Luis Luna. The vehicle driven by Luna, which was covered by Axis, had broken down by the side of the road and Stanovich drove out to meet Luna. Stanovich exited her vehicle and put out cones. Luna was able to get the company vehicle started, but Luna and Stanovich determined the truck needed to be taken out of service. Luna was to drive the truck to a safe location with Stanovich following. Luna left in the truck and Stanovich walked approximately 8 feet behind her vehicle to pick up the road cones she had placed. Another vehicle struck Stanovich as she was retrieving the cones.

In applying the law to those facts, the Georgia Court of Appeals determined that Stanovich was not “occupying” the covered vehicle because she was never in the vehicle, she never “entered, exited, unloaded, loaded, or controlled the vehicle in any manner.” Further, at the time Stanovich was injured, the vehicle had left the scene. Therefore, based on the facts Stanovich could not be said to be “occupying” the vehicle for purpose of coverage under the Axis policy.

The Georgia Court of Appeals also determined that Stanovich’s vehicle could not be considered a “temporary substitute.” In making this determination, the Stanovich Court noted that at the time of the accident, Luna was driving the covered vehicle. Luna and Stanovich both agreed that the vehicle was going to be placed out of service. However, because the vehicle was still in use, the Georgia Court of Appeals noted the Axis policy only covered one vehicle at a time— at that time, the vehicle driven by Luna.