Cab Driver’s Family Not Entitled to Uninsured Motorist Coverage in Carjacking

October 17, 2008

The estate of a cab driver who was killed during a carjacking is not entitled to uninsured motorist coverage benefits because the carjacker was not considered an “operator” of the cab, the Court of Appeals of Oregon ruled.

According to Svetlana Rogozhnikov v. Essex Insurance Co. and TSB Acquisions dba Broadway Cab Co., in February 2003, Grigory Rogozhnikov was driving his cab as an independent contractor for Broadway Cab LLC, when he picked up a passenger who eventually shot him and drove off. Rogozhnikov died of the gunshot wounds.

At the time of the shooting, Rogozhnikov was insured under an automobile policy that Essex Insurance Co. had issued to Broadway. Broadway was self-insured for the first $200,000 of uninsured motorist benefits that it owed, with Essex providing excess coverage.

Rogozhnikov’s estate filed a declaratory judgment action seeking UM benefits under the Essex policy, noting that the UM statute provides, “The insurer will pay all sums which the insured … shall be legally entitled to recover as general and special damages from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by acident and arising out of the ownership, maintenance or use of such insured vehicle.”

The trial court granted summary judgment for the defendants on the ground that the cab was not an uninsured vehicle because it was insured under a policy issued by Essex.

The plaintiff appealed, arguing that the carjacker became an “operator” of the cab when he put a gun to the cab driver’s head, thereby “exercising constructive control over the vehicle” directing the cab driver’s actions.

However, the appeals court conclude that the term “operator, in the context of automobile insurance and statutes addressing to the operation of motor vehicles … means a person who exercises actual physical control over the vehicle.”

Thus, the Appeals Court said the trial court did not err in granting summary judgment for the defendants.

For information, visit http://www.publications.ojd.state.or.us/A133503.htm.

Source: Oregon Judicial Department

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