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Aucoin v. Lafayett Insurance2/16/2000
DESIGNATED FOR PUBLICATION
ELIZABETH A. PICKETT JUDGE
(Court composed of Judge Saunders, Judge Woodard, Judge Pickett)
REVERSED
The plaintiff, Stephen Blake Aucoin, appeals a summary judgment from the trial court dismissing his claim that he was an insured under the UM policy of defendant, Lafayette Insurance Company. For the reasons set out below, we reverse.
FACTS
On July 22, 1997, plaintiff, Stephen Blake Aucoin, was traveling northbound on Interstate 49 in Lafayette, Louisiana. While traveling, plaintiff saw a long-time friend, Allen Guidry, who was also traveling northbound on I-49. Mr. Guidry was driving a pick-up truck owned by his employer and insured by defendant, Lafayette Insurance Company, which provided UM coverage on the Guidry vehicle.
The two drivers pulled onto the paved shoulder of I-49 near the Gloria Switch exit to speak with each other. Plaintiff parked his vehicle in front of the Guidry vehicle. Plaintiff then walked over to the Guidry vehicle and leaned on it while he began speaking with Mr. Guidry.
Several minutes later, plaintiff was struck by a Jeep driven by Ms. Sharon Frederick. As a result of the impact, plaintiff's left leg was amputated above the knee. His pelvis was shattered, and two surgeries were required to repair the damage done to his pelvis. He also underwent both a ureterostomy and a colostomy. He may now be impotent. Plaintiff incurred costs and medical expenses that exceed $200,000.00.
Ms. Frederick's vehicle was covered by a 10/20 liability policy issued by Farm Bureau on the date of the accident. With respect to the damages sustained by plaintiff and his wife, Ms. Frederick was underinsured. Plaintiff filed suit against defendant, claiming that due to his contact with the Guidry vehicle at the time of the accident, he was an insured under the terms of defendant's UM insurance policy. Defendant filed a motion for summary judgment, which was granted by the trial court. The trial court determined that plaintiff was not an insured under defendant's policy because he was not occupying the vehicle at the time of the accident.
OPINION
The issue on appeal is whether plaintiff, Mr. Aucoin, was an "insured" under Allen Guidry's UM insurance policy and therefore entitled to recover damages. Mr. Guidry's UM policy, issued by defendant, Lafayette Insurance Company, states:
We will pay all sums the "insured" is legally entitled to recover as damages from the owner or driver of an "uninsured motor vehicle." The damages must result from "bodily injury" sustained by the "insured" caused by an "accident."
The policy defines "insured" in pertinent part as:
Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto...."
The word "occupying" is defined under the policy as "in, upon, getting in, on, out or off."
Mr. Aucoin asserts that at the time of the accident, he was leaning on the Guidry vehicle. Since Mr. Aucoin's leaning was tantamount to being "upon" the truck, he was "occupying" the truck at the time of the accident. Thus, Mr. Aucoin was an insured under defendant's policy and is entitled to recover for the damages he sustained. We agree. For the following reasons, the district court's summary judgment for the defendant is reversed.
Appellate courts review summary judgment de novo under the same criteria which govern the trial court's consideration of whether summary judgment is appropriate. Benoit v. Roche, 94-715 (La.App. 3 Cir. 6/14/95); 657 So.2d 574. A motion for summary judgment shall be rendered if the pleadings
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