That was the issue the South Carolina courts grappled with in South Carolina Farm Bureau Mutual Insurance Co v Kennedy (SCSC, 25 July 2012). Kennedy ran an errand for his employer, a chicken feed supplier, using the employer’s truck. When Kennedy stood by the truck (with the ignition on and Kennedy’s dog on the front seat) outside a restaurant on the highway to chat with his half-brother, two pick-up trucks collided and one of them came careering towards the two men. Kennedy said he was pinned to the employer’s truck; in any event, he suffered injuries and made a claim for damages, medical costs and lost wages which exceeded the liability coverage of the driver of the pick-up truck which hit him. Was Kennedy entitled to his employer’s uninsured motorist (UIM) coverage, though, which required him to be ‘upon’ (and thus ‘occupying’) the employer’s vehicle?
The trial court thought so, accepting Kennedy’s statement that he had his hand on the employer’s truck (and was therefore ‘upon’ it) up to the point when it was obvious he needed to get out of the way of the on-coming pick-up. The South Carolina appeal court reversed, concluding that he was not actually in contact with the employer’s vehicle when he was struck and could not claim under the UIM provision, which would provide coverage only where there was a causal connection between his use of the truck and the accident. The state supreme court allowed Kennedy’s appeal. The appeal court erred in disregarding the trial judge’s factual findings (Kennedy’s hand was on the employer’s vehicle until just before the pick-up came at him, and he was pinned against the vehicle) and in thinking that the accident had not occurred during Kennedy’s use of the vehicle for the employer’s errand. To say that Kennedy was entitled to UIM coverage only if he had remained in constant contact with the vehicle was absurd: it was enough that he had been ‘upon’ it until the last minute – and reasonable for him to try to avoid being crushed by a rapidly approaching truck. Overly literal construction of the policy was rejected in favour of extending coverage (as would be the case in Canada).