This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2322

Alvin J. Hines, et al.,

Respondents,

vs.

The St. Paul Insurance Company, a Division of

St. Paul Fire and Marine Insurance Company,

Appellant.

Filed June 18, 1996

Affirmed

Schultz, Judge*

St. Louis County District Court

File No. C3-95-600041

Thomas J. Pappenfus, 2304 South Broadway, Suite 1, Alexandria, MN 56308 (for Respondents)

Theodore J. Smetak, Paul A. Banker, Arthur, Chapman, McDonough, Kettering & Smetak, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Appellant insurer challenges the district court's grant of summary judgment in favor of Hines, arguing that Hines, who was standing outside his employer's vehicle performing road repairs at the time he was hit by another vehicle, was not "occupying a motor vehicle" at the time of the accident. We affirm.

FACTS

In 1993, respondent Alvin Hines was employed by Progressive Contractors Inc. (Progressive), a company that primarily does highway and parking ramp construction and repair, as a "sandblaster operator." Hines used a sandblasting truck owned by Progressive. The truck had a "sand pot" and air compressor mounted on it. The truck was used for sandblasting and jackhammering. A jackhammer was connected to the truck by a hose. On July 29, 1993, while Hines was "red chipping" (i.e., taking a jackhammer and chipping out a hole or some other depression that has already been hammered to some extent) a hole approximately 10 feet away from the truck, he was struck by a "phantom vehicle" and injured.

Hines and his wife made a claim against the St. Paul Insurance Company (insurer) for uninsured motorist (UM) benefits on the ground that Hines was "occupying" the Progressive truck at the time of the accident. The insurer denied coverage because it concluded that Hines was not "occupying" the truck at the time of the accident. Hines and his wife brought a declaratory judgment action against the insurer. After cross-motions for summary judgment, the district court granted summary judgment in favor of Hines, concluding that he was occupying his employer's truck. This appeal followed.

D E C I S I O N

The insurer argues that Hines was not "occupying" the truck at the time of the accident. If Hines was "occupying a motor vehicle" at the time of the accident, then he is entitled to recover under the policy for the motor vehicle, i.e., his employer's policy (which has a $1,000,000 per accident limit). Minn. Stat. ' 65B.49, subd. 3a(5) (1994). If he was not occupying a motor vehicle at the time of the accident, then he can only recover from his own insurance policy (which has a $100,000 per accident limit). Id.

In determining whether a driver was "occupying" a motor vehicle, courts examine whether there was a "continuous relationship" between the driver and the vehicle, and whether the driver "remained within a close geographic perimeter of * * * [the] vehicle." Klein v. United States Fidelity & Guar. Co., 451 N.W.2d 901, 904 (Minn. App. 1990), review denied (Minn. Mar. 27, 1990).

The insurer argues that this case is similar to cases in which police officers were injured after they left their squad cars and this court held they were not occupying their vehicles. See Gieser v. Home Indem. Co., 484 N.W.2d 256 (Minn. App. 1992) (police officer was directing traffic 30-150 feet away from his squad car when he was struck by a passing car); Dohman v. Housely, 478 N.W.2d 221 (Minn. App. 1991) (officer left his car to investigate a suspicious person in another car; when the person sped away, he ran his car over the officer's foot and threw him in the air, injuring his foot and shoulder), review denied (Minn. Feb. 11, 1992).

Hines argues that this case is like a case in which a tow truck operator was struck while preparing to tow a stranded vehicle, Conlin v. City of Eagan, 482 N.W.2d 519 (Minn. App. 1992). This court held that the tow truck driver in Conlin was occupying the tow truck:

We conclude that Conlin did not sever his status as an occupant of the tow truck. Conlin arrived at the scene in the truck minutes before the accident, had returned to the truck to retrieve his tools, and was preparing the car for towing at the time he was struck. Had the accident not occurred, he would have immediately driven the truck back to his place of employment. Conlin's activities were in close proximity to the truck and part of his continuing connection to it.

Id. at 521. This court also reasoned that Conlin was on the road, exposed to the hazard of passing cars because of his responsibility as the driver of the truck, and the policy at issue was intended to cover the risks associated with the commercial enterprise of towing. Id.

We conclude that Hines was occupying the truck at the time of the accident. First, like Conlin, and unlike Gieser and Dohman, Hines's truck was specially designed for an activity that required the driver to exit the vehicle and return to the vehicle frequently. Second, Hines was only about 10 feet away from the truck--much closer than the 30-150 feet in Gieser. Third, as in Conlin, Hines had exited the truck just a few minutes earlier. Fourth, Hines was physically connected to the truck--he was using a jackhammer that was connected to the truck. Fifth, the truck was running at the time of the accident (and had to be running for the compressor to work). Sixth, unlike Gieser and Dohman, and like Conlin, Hines could not have done the activity he was engaged in at the time of the accident without the truck. Finally, as the district court properly noted,

[t]he nature of * * * [Hines's] job--working on specific portions of road which need repair using his truck as part of his job--is such that it is reasonable to expect the State's automobile insurance company [to] anticipate that it may be required to pay for accidents which occur while * * * [Hines] is using the truck to do his job.

See Conlin, 482 N.W.2d at 521 (because tow truck driver "was on the road, exposed to the hazard of passing cars because of his responsibility as the driver of the truck," it was reasonable to expect the employer's policy to cover "risks associated with the commercial enterprise").

Because we determine that Hines was "occupying" the truck, we do not reach the issue of coverage under the policy language.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.