Ohio Court of Appeals Finds “Close Proximity” is Synonymous with “Occupying”

The interpretation of an insurance policy should be simple. The words should be given their common meaning and applied in accordance with the agreement of the parties.

In Donald Martens, III v. Auto-Owners Insurance Company, Court of Appeals No. L-19-1011,  2019 Ohio 5423, Court of Appeals of Ohio Sixth Appellate District Lucas County (December 31, 2019) Donald Martens, III, appealed a January 22, 2019 judgment of the trial court granting summary judgment to appellee, Auto-Owners Insurance Company where the Court of Appeals was asked to conclude that “close” is enough to fit the words “occupying, in or on.”


On or about September 19, 2016, appellant and his boss arrived at 9955 Brint Road, Sylvania, Lucas County, Ohio. They were at the address to perform driveway sealing services for a residential address. The truck and the attached trailer were parked on the eastbound side of the road with about half of the truck in the grass and half on the roadway. Traffic cones were placed around the vehicle to direct traffic away from the truck. Appellant and his colleagues removed weed trimmers and other work equipment out of the truck and trailer and placed the equipment on the grass area next to the driveway. The unloading was completed prior to appellant’s injury.

Appellant then returned to the street side of the truck to ask his boss which end of the driveway they would begin their work. Both men were inside the traffic cones, but outside of the vehicle, while they discussed what the work for the day would entail. Appellant was “mere feet” from the truck at this time.

A negligent, underinsured driver then struck the truck and appellant. Appellant broke his left leg in three places and required surgery and physical rehabilitation.

At all times, the truck was covered under an insurance policy issued by appellee to appellant’s employer. Appellant filed the initial action against appellee seeking benefits under the underinsured motorist benefits of that policy.

During the course of the litigation, appellee filed a motion for summary judgment which sought to have the trial court determine appellant was not covered under the insurance policy because he was not “occupying” a vehicle at the time of the accident. Appellee argued it was entitled to judgment because appellant was not in, on, entering, exiting, or alighting from the vehicle at the time of the accident.

The trial court agreed with appellee and granted its motion for summary judgment.


If the language of a contract is ambiguous or susceptible to more than one interpretation, it must be construed in favor of the insured and against the insurer. When an insurance contract is clear and unambiguous, its interpretation is a question of law.

The court must give the words and phrases in the policy their plain and ordinary meaning. When the plain and ordinary meaning of the language contained in an insurance policy is clear and unambiguous, a court cannot resort to construction of that language.

The Supreme Court of Ohio has stated that “the word ‘occupying’ should not be given an unduly narrow definition.” Kish v. Cent. Nat. Ins. Group, 67 Ohio St.2d 41, 51, 424 N.E.2d 288 (1981).


The insurance policy defines occupying as “Occupying means being in or on an automobile as a passenger or operator, or being engaged in the immediate acts of entering, boarding or alighting from an automobile.”

The Ohio court found that the insurance contract in this matter is ambiguous because the definition of “occupying” is susceptible to multiple interpretations based on applying that definition to the facts at hand. Several courts, including the Ohio State Supreme Court, found in the past that the term “occupying” is ambiguous when used in a car-insurance context.

Appellant was clearly in close geographic proximity to the company’s truck. He was hit by the other motorist while he was next to the vehicle. Speaking with one’s coworker inside of a vehicle that is parked for the express purpose of beginning to work is a foreseeably identifiable use of the truck and those who occupy it.

Appellant was near the vehicle, at the time he was struck. Appellant had already unloaded the back of the truck and prepared some of the materials for the day near the driveway where they would shortly begin work. The proximity to the vehicle  was enough for the court to conclude that the appellant had a sufficient relationship with the vehicle.

What is required by case law, is that if the claimant is in close geographic proximity with the vehicle, the claimant has a sufficient relationship with the vehicle, and the claimant was acting with a purpose related to the vehicle.


The reversal of the trial court’s ruling was, in my opinion, an act of sophistry. Whether the appellant was in close proximity to the vehicle or 30 feet away, he was not occupying the vehicle since he was not in, on or upon the vehicle. He was standing to the side chatting with his boss about the work they were going to do with all the equipment they had already removed from the truck. Courts should not change the meaning of a clear word with an even more clear definition to provide coverage for a seriously injured person. A person is not, in my opinion, occupying a vehicle when he is in close proximity to it any more than when he is far away from it.

© 2020 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

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 also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

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