Worker Not Covered By Employer’s Insurance in Accident While Using Her Own Vehicle

A plaintiff recently sued her employer’s underinsured motorist (“UM”) carrier for damages related to injuries she sustained when she was struck by a car while removing a traffic cone used to divert traffic from a coworker’s company truck.


The plaintiff’s co-worker was driving a company truck that broke down on the side of the road. The co-worker set out a traffic cone to divert traffic, and, at the direction of the plaintiff’s supervisor, called the plaintiff to assist him.

The plaintiff arrived at the scene in her own car. After 15 minutes, the co-worker cranked the company truck again, and it started. He and the plaintiff decided that the co-worker would “drive down the road a short distance and find somewhere to park the truck and leave it[,] and she would follow [him] in her car and pick [him] up because the truck was not running right and having issues.”

The co-worker drove off as the plaintiff was retrieving the traffic cone about eight feet from her own car. As she was walking back to her vehicle, she was struck from behind and trapped underneath a car, sustaining serious injuries.

Following the denial of UM coverage under the employer’s insurance company policy, the plaintiff sued the drivers of two vehicles involved in the accident. The insurers of both drivers and her own UM carrier paid the plaintiff their policy limits, and she also received workers compensation benefits. The plaintiff amended her complaint to add the employer’s insurance company as a party, alleging breach of contract based on its denial of UM coverage.

The employer’s insurance company policy provided $1 million in UM coverage on behalf of the company for covered vehicles. For purposes of this coverage, an individual insured is defined as the named insured and any family members, as well as “[a]nyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ The covered ‘auto’ must be out of service because of its breakdown, repair, servicing, ‘loss[,]’ or destruction.” The policy defines “occupying” as “in, upon, getting in, on, out[,] or off.”

The insurance company moved for summary judgment, and the trial court granted the motion. The plaintiff appealed.

The Plaintiff’s Argument on Appeal

The plaintiff contended that the trial court erred by granting summary judgment to the employer’s insurance company because questions remained as to whether she was an insured at the time of the accident under her policy and the Georgia UM statute.

The Court of Appeals said its analysis required it to construe the employer’s insurance company policy.

Construction and interpretation of an insurance policy are matters of law for the court. An insurance policy is a contract and subject to the ordinary rules of contract construction, and the parties are bound by its plain and unambiguous terms. But if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, the policy is ambiguous, and the statutory rules of contract construction must be applied.

The Decision of the Court of Appeals

On appeal, the plaintiff claimed that she was insured under the employer’s insurance company policy because she was “using” the company truck at the time of the accident, but the Court disagreed. Presiding Judge Sara L. Doyle of the Georgia Court of Appeals wrote that under Georgia Statute § 33-7-11(b)(1)(B)(2), an insured includes “any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies.”

The Court previously defined the term “use” as “to employ for some purpose.” Still, Judge Doyle said that the Court must be careful to note that there’s no exact definition of the term. It’s dependent to an extent on the circumstances of the case. Whether an injury arose out of the use of a motor vehicle, turns on consideration of these factors:

  • the physical proximity of the injury site to the vehicle;
  • the nature of the conduct which caused the situation of jeopardy, and
  • whether the vehicle was being utilized in the plain and ordinary sense of the word.

In evaluating physical proximity, the court considers more than how close the vehicle was to the accident scene because “use” also embraces the notion that the person using the vehicle had control over it or that control was reasonably at hand. As such, while the term “use” of a motor vehicle does extend beyond actual physical contact, it doesn’t imply remoteness. Rather, the term contemplates use of the motor vehicle as a vehicle at the time of the injury.

Here, the plaintiff wasn’t in the company truck at any point on the day of her accident. She never occupied, entered, exited, unloaded, loaded, or controlled it in any way. And at the time she was hit, the truck had left the scene. Under those undisputed circumstances, Judge Doyle and the Court of Appeals held that the trial court properly concluded that the plaintiff wasn’t “using” the company truck at the time of her accident. As such, she wasn’t insured under the employer’s insurance company policy under Georgia Statute § 33-7-11(b)(1)(B)(2).

Was the Plaintiff’s Car a Temporary Substitute for a Covered Auto?

The plaintiff also argued that she was insured under the employer’s insurance company policy because her personal vehicle qualified as “a temporary substitute for a covered auto” at the time of the accident. Again, the Court of Appeals disagreed.

The employer’s insurance company policy insured a person occupying “a temporary substitute for a covered auto.” The Court of Appeals said it was undisputed that the plaintiff drove her personal car to the location where the company truck, which “had been running poorly,” had broken down on the roadway. Although her co-worker was ultimately able to start the engine, he decided to “[take] the truck out of service and out of commission because it was broken down,” and he drove it off the roadway to a safe location to park and leave it. According to the co-worker, his “plan [with the plaintiff] the  entire time was to use her car to follow the truck, park it, and use her vehicle because the truck was breaking down and not working properly.”

Thus, the issue was whether the company truck was, at the time the plaintiff was injured, “out of service because of its breakdown, repair, servicing, ‘loss[,]’ or destruction” such that her car qualified as a temporary substitute vehicle within the meaning of the employer’s insurance company policy.

Here, on the issue of whether the plaintiff’s car could have become a “temporary substitute vehicle,” Judge Doyle found that it was not a substitute vehicle under the policy at the time she was injured.

The employer’s insurance company, for purposes of this analysis, insured a single vehicle at a time – either the company truck or the co-worker’s car. At the time the plaintiff was struck and injured, the co-worker was driving the company truck to a nearby parking lot. So, although the truck may well have been “removed from service” and the plaintiff’s car could have become a temporary substitute vehicle insured under the policy had the two used the plaintiff’s car after the co-worker parked the truck, that’s not what occurred at the time the plaintiff was injured.

The policy simply did not require the employer’s insurance company to insure both vehicles simultaneously. As a result, the plaintiff’s vehicle was not a temporary substitute vehicle under the policy at the time of her injuries, and the employer’s insurance company was entitled to summary judgment.

The judgment was affirmed. Stankovich v. Axis Ins. Co., 2022 Ga. App. LEXIS 511 (Ga. App. October 31, 2022).

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