{ "id": 708837, "name": "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. Brenda GRAHAM, Individually and as Next Friend of Patches R. Graham, a minor, Defendant-Appellee", "name_abbreviation": "Allstate Insurance v. Graham ex rel. Graham", "decision_date": "1988-03-02", "docket_number": "No. 16943", "first_page": "779", "last_page": "781", "citations": [ { "type": "official", "cite": "106 N.M. 779" }, { "type": "parallel", "cite": "750 P.2d 1105" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "104 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594921 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "665" }, { "page": "342" }, { "page": "666" }, { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0664-01" ] }, { "cite": "97 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555128 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "471" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0470-01" ] }, { "cite": "288 S.C. 616", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2168884 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sc/288/0616-01" ] }, { "cite": "128 Ariz. 79", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1534338 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/128/0079-01" ] }, { "cite": "420 So.2d 518", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9548059 ], "opinion_index": 0, "case_paths": [ "/so2d/420/0518-01" ] }, { "cite": "376 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "17 Ill.Dec. 347", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1978, "opinion_index": 0 }, { "cite": "60 Ill.App.3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354663 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0022-01" ] } ], "analysis": { "cardinality": 418, "char_count": 6673, "ocr_confidence": 0.809, "pagerank": { "raw": 1.0839464116803651e-07, "percentile": 0.5632212534398724 }, "sha256": "e8749760c4db4a43d243e67a517079c02746aea6726ff32c5f38c35d5f88cadc", "simhash": "1:3a8470565ded3091", "word_count": 1108 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCARBOROUGH, C.J., and RANSOM, J., concur." ], "parties": [ "ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. Brenda GRAHAM, Individually and as Next Friend of Patches R. Graham, a minor, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSTOWERS, Justice.\nPlaintiff-appellant Allstate Insurance Company (Allstate) appeals from a summary judgment entered in favor of defendantappellee Brenda Graham (Graham). We reverse.\nOn September 13, 1985, Graham drove her father\u2019s 1976 Ford to assist her friend, Pearl Silva (Silva), with a blow-out to one of the tires on Silva\u2019s car. Patches Graham, Graham\u2019s daughter, accompanied Graham to assist Silva. After Silva\u2019s spare tire was repaired at a nearby garage, Graham, Patches, and Silva drove back in the 1976 Ford to where Silva\u2019s car was parked off the side of the road. Graham parked her father\u2019s 1976 Ford approximately three feet in front of Silva\u2019s car. Graham removed Silva\u2019s spare tire from the trunk of the 1976 Ford and took it back to Silva\u2019s car. Graham then proceeded to remove the lugs on the left rear wheel of Silva\u2019s car in the process of changing that tire. Patches was standing near her mother. Silva was standing near the driver\u2019s door to her car. Graham had removed three lugs when the accident occurred. The accident was caused by another car which ran off the side of the road striking Silva\u2019s car, resulting in injury to Graham and Patches. The ear that caused the accident was uninsured. Silva\u2019s car was also uninsured. Graham\u2019s father\u2019s car, the 1976 Ford, was insured with Allstate.\nAllstate filed a complaint for declaratory judgment contending that Graham, a permissive driver of the 1976 Ford, was not an occupant of the car within the meaning of the policy at the time of the accident and, therefore, was not covered under the uninsured motorist provision of the policy. Allstate and Graham each filed motions for summary judgment. After hearing argument of counsel on the motions, the district court denied Allstate\u2019s motion for summary judgment and granted Graham\u2019s. Allstate appeals from that judgment.\nThe Allstate insurance policy provides coverage under \u201cSection II, Protection Against Bodily Injury And Property Damage By Uninsured Motor Vehicles\u201d to:\n(a) the named insured as stated in the policy and, while residents of the same household, the spouse of any such named insured and relatives of either;\n(b) any other person while occupying an insured motor vehicle; and\n(c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above.\nThe term \u201coccupying\u201d as used in subsection (b) above is defined in subsection 5, page 5, of the Allstate policy as follows: \u201c \u2018Occupying\u2019means in or upon or entering into or alighting from.\u201d Since Graham concedes that she is entitled to coverage only under subsection (b), the sole issue on appeal is the construction of the term \u201coccupying\u201d as defined by the Allstate policy for the purpose of the uninsured motorist provision.\nWhile it appears that this is a case of first impression in New Mexico, other jurisdictions have developed certain guidelines for determining the parameters of the term \u201coccupying\u201d as it refers to an uninsured motorist provision. In some cases, the distance in space or time the claimant is from the car is the controlling factor. In Greer v. Kenilworth Insurance Co., 60 Ill.App.3d 22, 17 Ill.Dec. 347, 376 N.E.2d 346 (1978), the court held that a claimant standing ten to fifteen feet to the rear of the insured car when she was struck by an uninsured motorist was not \u201coccupying\u201d the insured car at the time of the accident and, therefore, not an insured under the policy and not within the uninsured motorist coverage. Cf. Day v. Coca-Cola Bottling Co., 420 So.2d 518 (La.App.1982). In other cases, the test is the intent of the claimant or the reasonable connection between the claimant and the insured vehicle at the time of the accident. For instance, a claimant\u2019s assistance in putting tire chains on the insured car at the time of the accident was held to be an activity in such close proximity to the car and so related to its operation and use as to be an integral part of the claimant\u2019s occupancy and use of the car. The court held, therefore, that the claimant\u2019s activity fell within the definition of \u201coccupying\u201d the vehicle under the insurance policy. Manning v. Summit Home Ins. Co., 128 Ariz. 79, 623 P.2d 1235 (Ct.App.1980). Cf. Hite v. Hartford Accident & Indem. Co., 288 S.C. 616, 344 S.E.2d 173 (Ct.App.1986).\nGraham argues that Allstate\u2019s narrow interpretation of \u201coccupying\u201d disregards the scope and purpose of New Mexico\u2019s Uninsured Motorists\u2019 Insurance Statute, NMSA 1978, \u00a7\u00a7 66-5-301 to -303 (Repl. Pamp.1984), that purpose being \u201cto compensate those persons injured through no fault of their own.\u201d State Farm Auto. Ins. Co. v. Kiehne, 97 N.M. 470, 471, 641 P.2d 501, 502 (1982). Graham further contends that the term \u201coccupying\u201d and the words used in the Allstate policy to define it are ambiguous and, therefore, the Court should construe the ambiguous policy language liberally in favor of Graham.\nFirst, we do not agree that Allstate\u2019s interpretation of the policy term \u201coccupying\u201d conflicts with the purpose of New Mexico\u2019s Uninsured Motorists\u2019 Insurance Statute. Second, we do not find the Allstate policy language to be ambiguous. We hold that Graham was simply not engaged in a transaction oriented to the use of the 1976 Ford at the time of the accident. The purpose of using the 1976 Ford, to deliver Silva\u2019s repaired spare tire, was accomplished when Graham parked her father\u2019s car. Fixing the flat tire on Silva\u2019s car was in no way related to the occupancy or use of the 1976 Ford.\n\u201cSummary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.\u201d Koenig v. Perez, 104 N.M. 664, 665, 726 P.2d 341, 342 (1986). \u201cIf the facts are not in dispute, but only the legal effect of the facts is presented for determination, then summary judgment may be properly granted.\u201d Id. at 666, 726 P.2d at 343.\nThe facts are not in dispute in the case before us. Therefore, summary judgment is proper. However, because we find that the district court erred in its application of the correct law, we reverse and grant summary judgment to Allstate.\nThe parties will each bear their own costs and attorneys\u2019 fees on appeal.\nIT IS SO ORDERED.\nSCARBOROUGH, C.J., and RANSOM, J., concur.", "type": "majority", "author": "STOWERS, Justice." } ], "attorneys": [ "Farlow, Simone, Roberts & Weiss, LeRoi Farlow, Norman Weiss, Albuquerque, for plaintiff-appellant.", "Bruce P. Moore, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "750 P.2d 1105\nALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. Brenda GRAHAM, Individually and as Next Friend of Patches R. Graham, a minor, Defendant-Appellee.\nNo. 16943.\nSupreme Court of New Mexico.\nMarch 2, 1988.\nFarlow, Simone, Roberts & Weiss, LeRoi Farlow, Norman Weiss, Albuquerque, for plaintiff-appellant.\nBruce P. Moore, Albuquerque, for defendant-appellee." }, "file_name": "0779-01", "first_page_order": 819, "last_page_order": 821 }