An auto insurance company couldn’t convince the Court of Appeals of Indiana to change its mind about allowing a roadside assistance worker to receive underinsured-motorist coverage after he was injured while working.
Zachary Shipley was injured on the job as a roadside tire technician in 2018. Driving a van owned by his employer, R & H Tire, Shipley went to the shoulder of an exit off of I-645 in Indianapolis to help a customer.
He pulled in front of the customer’s car and backed up so that the rear of the van was near the front of the car. Leaving some of the R& H van doors open, Shipley removed the customer’s flat tire and rim from the trunk of the car and placed them on the ground between the van and the car.
As Shipley was working to dismount the flat tire and mount the new tire, a runaway tire that had fallen off a passing truck struck him. The incident occurred just as Shipley was about to return to the van to turn on an air compressor.
Shipley later sued his employer’s auto insurer, Auto-Owners Insurance Company, for underinsured-motorist benefits. Auto-Owners moved for summary judgment, arguing that Shipley was neither occupying nor using the van at the time of the accident, as required for UIM coverage.
But the Marion Superior Court denied the motion, which the COA affirmed in Auto-Owners Insurance Company v. Zachary Shipley, 21A-CT-761.
The COA in an interlocutory appeal agreed with Shipley that he was “using” the van for purposes of the liability coverage. It cited the cases of Monroe Guaranty Insurance Co. v. Campos, 582 N.E.2d 865 (Ind. Ct. App. 1991) and Argonaut Insurance Co. v. Jones, 953 N.E.2d 608 (Ind. Ct. App. 2011) as being helpful in defining “use.”
“When he was hit by the runaway tire, some of the van doors were still open, and he was only about twenty seconds from going back to the van to turn on an air compressor to inflate the new tire. These facts support the conclusion Shipley was ‘using’ the van at the time of the accident,” Judge Nancy Vaidik wrote.
Finally, the COA disagreed with the Auto-Owners’ argument that the policies at issue in Campos and Jones required only the “ownership, maintenance or use” of an auto, whereas the policy at hand requires the ownership, maintenance, or use of an auto “as an auto.”
This article was first published in The Indiana Lawyer.
