Argonaut Great Central Insurance Company v. Mitchell

482 Fed.Appx 477 (11th Cir. 2012)

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Nature of the Case

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Facts

D was collecting garbage in Madison County. D was required to ride on the back of the truck, get off at each stop to get the cans and empty them into the back of the truck and to stand on the platform on the right rear side of the truck when necessary to run the packer. D was struck from behind by a passenger car and pinned against the right rear platform of the garbage truck. d died from his injuries. The Policy defined 'Insured' as 'anyone ... 'occupying'' a covered vehicle. The provision of the Policy applicable to uninsured/underinsured motorist coverage defined 'occupying' as 'in, upon, getting in, on, or off.' The issue is whether D was 'occupying' the garbage truck -- getting on or getting off -- at the time of the accident. P asserts that testimony shows that D was off the truck for eight to twelve seconds or more, standing on the ground at the left rear or the middle of the rear of the garbage truck at the time of impact. D asserts that testimony shows that D's feet were on the ground at the rear of the truck a mere split second before he was struck; he was in the process of ascending or descending the truck platform. The court ruled for D and P appealed.