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Johnson v. United States Fidelity & Guaranty Insurance Company

November 12, 1998

WILLIE JOHNSON, A MINOR, BY AND THROUGH JANETTE BLOCKET, HIS MOTHER
v.
UNITED STATES FIDELITY & GUARANTY INSURANCE COMPANY AND TEMECCA WALKER



Before Prather, C.j., Banks And McRAE, JJ.

The opinion of the court was delivered by: Prather, Chief Justice

DATE OF JUDGMENT: 04/15/97

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION REVERSED AND REMANDED - 11/12/1998

STATEMENT OF THE FACTS AND CASE

¶1. On December 12, 1988, six-year old Willie Johnson was struck by an uninsured motorist while he was walking from his home to board a parked school bus 141 feet away. The uninsured vehicle was driven by Tamecca Walker ("Walker"), who proceeded through an intersection in spite of the presence of the parked school bus with its stop sign and lights displayed. Johnson suffered severe bodily injuries, including a broken pelvis, as a result of the accident. On November 30, 1994, Johnson filed a complaint against Walker and USF&G, the UM carrier for the school bus. The trial court granted USF&G's motion for summary judgment, finding that Johnson had not been occupying the school bus at the time of the accident and was thus not entitled to UM benefits. Johnson appeals to this Court.

ISSUE

Whether the term "occupying" contained in policy number 3202 VAL 200475-01-9 is ambiguous and should be construed in favor of Willie Johnson to find coverage inasmuch as the policy term "occupying" is susceptible to varying reasonable interpretations?

¶2. The present appeal centers solely around a question of law as to whether Johnson was an "insured" entitled to UM benefits under the facts of the present case. This Court has made it clear that, in order to be considered an "insured," an injured party must meet the definition of this term set forth either in the policy or in the UM Act. See: Harris v. Magee, 573 So.2d 646 (Miss. 1990). The USF&G policy in the present case defines an insured, in part, as anyone "occupying" a covered auto, and the term "occupying" is defined as "in, upon, getting in, on, out or off" the covered auto. Johnson argues that he was "occupying" the bus within the policy definition of the term, given that he was in the process of "getting on" the bus at the time of the accident.

¶3. Johnson need not meet the definition of "insured" under the USF&G policy, however, if he meets the definition of this term set forth in the Uninsured Motorist (UM) Act. Miss. Code Ann. § 83-11-103(b) (1991) defines an "insured" as follows:

The term `insured' shall mean the named insured and, while a resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied of the named insured, the motor vehicle to which the policy applies and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above.

The statute thus grants "insured" status to any party who "uses" the covered vehicle with the consent of the named insured. This Court has, in prior cases, set forth a very liberal interpretation of "using" a vehicle, and this interpretation ...


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