How can someone occupy a vehicle without being inside it? Seems like an oxymoron. There are a plethora of Wisconsin cases addressing what constitutes “use” of a vehicle. There are far fewer cases dealing with what it means to “occupy” a vehicle. But this is an important topic to think about because under most automobile policies, an unnamed insured must be “occupying” an insured vehicle to receive uninsured, underinsured, and medical payments benefits.
“In Wisconsin it is not necessary that an individual have physical contact with an automobile before that person can be labeled an occupant under an automobile insurance policy.” Kreuser v. Heritage Mut. Ins. Co., 158 Wis. 2d 166, 172, 461 N.W.2d 806 (Ct. App. 1990). (citing Sentry Ins. Co. v. Providence Washington Ins. Co., 91 Wis. 2d 457, 283 N.W.2d 455 (1979)). Most policies define “occupying” to mean “in, upon, getting in, on, out or off.” Despite this rather seemingly clear language, whether the claimant was “occupying” the insured vehicle is not such a simple analysis.
While the definition of “occupying” may not appear ambiguous on its face, courts have held that it becomes ambiguous when determining the scope of coverage in individual fact situations. “The ambiguity becomes apparent when it is necessary to determine what is meant by ‘getting into’ a motor vehicle. Does it mean that the party must be seated; have a portion of his or her body inside the vehicle; or have his or her hand on the door handle? This phrase, having more than one potential meaning, leaves the insured in a quandary as to the extent of his or her coverage.” Id. Likewise, the word “upon” has been deemed ambiguous. Moherek v. Tucker, 69 Wis. 2d 41, 230 N.W.2d 148 (1975).
