This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

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 January 7, 1997

Affirmed

Schultz, Judge

[*]

Dissenting, Peterson, Judge

St. Louis County 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

On August 29, 1996, the supreme court remanded Hines v. St. Paul Ins. Co., No. C2-95-2322 (Minn. App. June 18, 1996), for consideration in light of its opinion in Allied Mut. Ins. Co. v. Western Nat'l Ins. Co., 552 N.W.2d 561 (Minn. 1996). We conclude that based on the unique facts of this case--i.e., the nature of appellant Alvin Hines's job and type of vehicle he was driving--our initial decision was correct.

D E C I S I O N

In Allied Mut., the supreme court held that a passenger was not "occupying" the driver's vehicle, as that term was defined in the policy, when she was injured by an uninsured motorist while standing next to the driver's vehicle in a parking lot adjacent to O'Hara Brothers Bar waiting for the driver to unlock the door so she could get in the car. The supreme court reasoned:

When Ms. Decker was struck by the Larson vehicle she was a pedestrian. That she was standing in the vicinity of the McMillan automobile was mere happenstance. Decker was not occupying--i.e., in or getting in--McMillan's automobile; and, in fact, she had no immediate expectation of occupying the car, which McMillan could not unlock.

Moreover, the McMillan automobile was no more "involved" in the accident than was Decker. Like Decker the McMillan automobile was simply present: it was parked, unoccupied and unmoving, and was a victim (if the term "victim" can be applied to an inanimate object) of Larson's carelessness just as were Decker and McMillan.

In short, under the policy definition of "occupying," which is more generous to the insured than the ordinarily accepted meaning of the term, Ms. Decker was not occupying the McMillan vehicle when she was injured by Larson's uninsured vehicle. * * * Furthermore, there was no conceivable causal connection between the McMillan automobile and Decker's injuries.

Id. at 563-64. The facts of this case are very different.

First, unlike the claimant in Allied Mut., Hines was not a pedestrian at the time of the accident--he had been driving the truck, he had just exited a few minutes earlier, and he planned to continue driving after doing the "red chipping."

Second, it was not "mere happenstance" that he was standing in the vicinity of the vehicle--it was the nature of his job, and he was physically connected to the vehicle by the hose, while using the jackhammer.

Third, Hines did have an "immediate expectation of occupying the car"--he had been driving it before the accident, and was planning on driving it some more. He was standing about 10 feet away from the vehicle, and the vehicle was running at the time of the accident.

Fourth, the vehicle was not "simply present"--he was connected to it by the hose and it was the reason he was in harm's way.

Fifth, his vehicle was specially designed for an activity that required the driver to exit the vehicle and return to the vehicle frequently.

In short, we conclude that Hines was "occupying" the truck and that there was a causal connection between the occupancy of the vehicle in this case and Hines's injuries. See id. at 563 ("[T]his court has long required some causal connection between the occupancy of the vehicle and the injury.").

Affirmed.

PETERSON, Judge (dissenting)

I respectfully dissent.

In Allied Mutual Insurance Co. v. Western National Mutual Insurance Co., 552 N.W.2d 561, 562-64 (Minn. 1996), the supreme court held that a woman who was standing near a parked car waiting for the driver to unlock the door so that she could get into the car was not "occupying" the parked car when she was struck by a passing car. The supreme court referred to a series of opinions of this court that define "occupying" in terms of a "'reasonable geographic perimeter around a vehicle or a continuing relationship between a vehicle and the claimant.'" Id. at 563 (quoting Horace Mann Ins. Co. v. Neuville, 465 N.W.2d 432, 433 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991)). The supreme court then said:

That the No-Fault Act does not define "occupy" or "occupying" does not suggest to us the necessity to attribute to the term a definition far removed from common usage. If an adult can be said to have a "relationship" with an inanimate object like an automobile, it seems reasonable to expect any such "relationship" to be limited to one's own vehicle. As for a "reasonable geographic perimeter" around an automobile, the application of such a measure to determine occupancy calls to mind the equity that depended on the length of the chancellor's foot. Rather than treating the term "occupy" or "occupying" as an ambiguity inviting creative definition, we are of the opinion that we must look first to the ordinary and commonly accepted meaning of "occupy"--to take possession of a place or to be resident or established in a place.

Id.

I conclude that in Allied Mutual, the supreme court rejected entirely the notion that a person who is not actually in an automobile, or at least in the act of getting into or out of an automobile, is "occupying" the automobile. Under Allied Mutual, a person who is merely in a reasonable geographic perimeter around a vehicle is not occupying the vehicle even if the person maintains a continuing relationship with the vehicle.

When Alvin Hines was struck by a passing car, he was several feet from the truck he had been driving. He was doing some repair work on the road. He was not in the truck, and he was not getting into the truck. Therefore, he was not occupying the truck.

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