Nature of the Case
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Facts
Townsend rear-ended Chad Hahn (D) with his car while d was stopped on his motorcycle at a red light. The impact threw D from his motorcycle. According to D, he landed momentarily on the hood, windshield, and roof of Townsend's vehicle before coming to rest on the street. D and Townsend had no relationship prior to the accident. D's medical bills totaled around $160,000 and D claimed, through his attorney, that Townsend faced personal liability 'in the neighborhood of $500,000 to $1,000,000.' Townsend was insured with a policy issued by GEICO (D). Townsend's policy provides up to $50,000 of property damage liability per person and $50,000 for bodily injury liability per person. In addition, it includes UIM (under insured motorist) benefits, extending up to $50,000 of coverage for 'damages for bodily injury [and property damage], caused by an accident, which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle, an underinsured motor vehicle, or a hit and run motor vehicle arising out of the ownership, maintenance or use of that vehicle.' P defines 'insured' as follows: (a) you; (b) your relatives if residents of your household; (c) any other person while occupying an insured auto; (d) any person who is entitled to recover damages because of bodily injury sustained by an insured under (a), (b), and (c) above. The policy then defines 'occupying' to mean 'in, upon, getting into or getting out of.' The UIM coverage is not available 'until the limits of liability of all bodily injury and property damage liability bonds and policies that apply have been used up by payments, judgments or settlements.' P offered to pay D 'full per person limits of liability bodily injury coverage and the full amount of the liability property damage coverage' in exchange for a full release of all claims against Townsend. D countered that if the UIM limits were offered in addition to the property damage and bodily injury limits, he would advise D to release all claims against Townsend. P repeatedly reiterated that it was willing to pay D full bodily injury and property damage limits under Townsend's policy in exchange for a full release of all claims against Townsend. D refused to pay UIM benefits to D, believing a UIM claim was without factual or legal support. P filed suit seeking a declaratory judgment that 'there is no coverage available to P under the UIM coverage of Townsend's D policy with respect to the April 18, 2015 accident, and that P has no obligation to pay any damages D seeks to recover under that coverage as a result of that accident.' P argued that D was not 'occupying' Townsend's vehicle under the policy and therefore was not an insured. P asserted a counterclaim for a declaratory judgment that 'there is underinsured motorist coverage available to D under the P policy. issued to Franklin Townsend' because P was occupying Townsend's vehicle when he landed on it. The superior court issued a written order concluding in part that P was not entitled to UIM coverage under Townsend's P policy and P was therefore entitled to summary judgment. D appealed.
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