No Contact With Vehicle = No Coverage

Occupancy Provision Prevents Coverage for Insured Injured as a Pedestrian

George Mims was injured when he was struck by an automobile while walking toward his own vehicle. At the time of the accident Mims had no contact with his vehicle, either before or after the accident, and there was no causal connection between his vehicle and the injuries he suffered.

In George Mims; Cecilia Mims v. USAA Casualty Insurance Company, No. 21-1654, United States Court of Appeals, Fourth Circuit (March 21, 2023), George and Cecilia Mims appealed the district court's orders granting USAA Casualty Insurance Company's motion for summary judgment and denying the Mimses' subsequent motion to alter or amend the judgment or for certification of questions to the South Carolina Supreme Court on the Mimses' declaratory judgment action related to the stacking of underinsured motorist coverage under their insurance policy with USAA.

SOUTH CAROLINA LAW

Summary judgment is only warranted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Under South Carolina law, stacking allows an insured motorist to recover damages under more than one policy until he satisfies all of his damages or exhausts the limits of his available policies. An insured may stack unless limited by statute or a valid provision in his insurance policy. South Carolina law limits stacking of underinsured motorist coverage if none of the insured's or named insured's vehicles is involved in the accident. Instead, coverage is available only to the extent of coverage on any one of the vehicles with excess or underinsured coverage.

THE RECORD

The record made clear that Mims had no contact with his vehicle, either before or after the accident, and established that there was no causal connection between his vehicle and the injuries he suffered. Mims was walking to his vehicle at the time he was struck but, according to his own testimony, he had not yet reached his vehicle or physically engaged with it besides unlocking it remotely from across the parking lot.

ANALYSIS

Regardless of whether the Mims' policy provision broadens or narrows the circumstances in which stacking is allowed, the circumstances here are not encompassed by the provision, as Mims was not "in, on, getting into or out of" his vehicle at the time of the accident.

Under South Carolina law, act of getting to or approaching a vehicle is beyond terms of insurance policy with occupancy provision.

ZALMA OPINION

Although stacking is important to a person injured by an uninsured or underinsured motorist, when there is a policy that requires the insured to occupy his vehicle for there to be coverage, the right to stacking becomes irrelevant. since Mr. Mims was not "in, on, getting into or out of his vehicle" at the time of the accident. When there is no coverage at all there is no need to stack coverages.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com

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