Trial Court finds student hit by a drunk driver is entitled to coverage under his school bus’s insurance policy

In 2008, an 11 year old student was dropped off at his usual bus stop along a busy road. As required by the nature of the bus stop, he had to walk with his back to traffic to get to his driveway. There was no sidewalk.

Shortly after exiting the school bus, a drunk driver hit the student from behind, causing serious injuries. The drunk driver had insufficient liability insurance coverage, so we sought underinsured motorist coverage from the school bus’s insurance company.

Coverage under the school bus’s policy depended on whether the student was “occupying” the school bus, as defined in the pertinent policy. “Occupying” was defined in the policy to include getting off of or getting out of a vehicle.

The insurance company denied coverage and we filed a declaratory judgment action in Superior Court. We argued that the student was still getting off of the bus because he was attempting to reach a place of safety when the drunk driver hit him. In D’Amour v. Amica, 153 N.H. 170 (2005), the New Hampshire Supreme Court held that a reasonable interpretation of the term “occupying” included getting to a place of safety.

Following a bench trial, Superior Court Judge Kenneth Brown ruled that the student was entitled to underinsured motorist coverage under school bus’s insurance policy.  Judge Brown found that the student was still occupying the school bus.  Relying on D’Amour, the court found that  he was not in a place of safety because he was walking with his back to traffic on a busy road without a sidewalk when the accident occurred. See Bench Trial Order.

While it may seem that the term “occupying” would be limited to a person who is inside a vehicle, the term is actually broad and can include, as in this case, someone who is injured at a distance away from the vehicle he or she just exited.

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