## Facts

- Donald Boulter and a coworker were on a long, continuous work-related road trip in a work van, traveling from Bozeman to Billings and then on to Buffalo, Wyoming to complete deliveries.
- After completing the Billings delivery, they stopped at a McDonald’s to buy to-go breakfast before continuing the trip.
- Boulter parked the van in the McDonald’s parking lot, exited, and went inside to order food.
- After receiving the order, Boulter walked back toward the van.
- An unknown motorist drove past Boulter in a rushed manner; Boulter stepped backward to avoid the vehicle, slipped, and fell, suffering a serious head injury.
- At the time of the fall, Boulter was about 60 feet from the van, and the unknown vehicle did not physically strike Boulter or the van.
- Hartford Fire Insurance Company insured the van under a business auto policy that included uninsured motorist (UM) coverage for an “insured.”
- The policy defined an “insured,” in relevant part, as anyone “occupying” a covered auto; “occupying” was defined as “in, upon, getting in, on, out or off.”
- The UM endorsement treated a “hit-and-run vehicle” as an uninsured motor vehicle only if the vehicle “must hit” an insured, a covered auto, or a vehicle an insured is occupying.
- Boulter made a UM claim. Hartford denied coverage, asserting Boulter was not “occupying” the van and the hit-and-run definition was not met.
- Boulter sued for declaratory relief. Hartford removed the case to federal court. The parties filed cross-motions for summary judgment on UM coverage.

## Issues

1. Whether Boulter qualified as an “insured” because he was “occupying” (including “getting in”) the covered van while walking back to it after a brief stop during a continuous work trip.
2. Whether the unidentified driver qualified as a covered “hit-and-run vehicle” under the policy’s “must hit” language even though there was no direct physical contact with Boulter or the van.

## Decision

- The court granted Boulter’s motion for summary judgment and denied Hartford’s motion.
- The court held Boulter was “occupying” the van within the meaning of “getting in” because his actions—briefly leaving the van to obtain to-go food and walking directly back to resume the trip—were reasonably connected to the vehicle’s use during an ongoing trip, and the 60-foot distance did not defeat coverage.
- The court held the unidentified vehicle satisfied the UM endorsement’s “hit-and-run” requirement as applied under Montana law, because the unknown driver’s conduct directly caused Boulter’s evasive step and resulting fall; the claim was not barred solely because the unknown vehicle did not make physical contact.
- Judgment was entered in favor of Boulter on the UM coverage dispute.

## Legal Principles

- Insurance policies are interpreted according to their terms as read in context and under applicable state law; summary judgment is appropriate when coverage turns on policy interpretation and the material facts are undisputed.
- Under Montana law, “occupying” language such as “in, upon, getting in, on, out or off” can extend beyond literal physical contact and may include conduct that has a reasonable connection to using the vehicle as a vehicle.
- In deciding whether a person was “occupying” a vehicle, courts consider the purpose and continuity of the person’s activity in relation to the vehicle’s use; physical distance is a factor but not the only one.
- Hit-and-run provisions aimed at unidentified motorists are construed in light of UM coverage’s protective function; where an unidentified vehicle’s operation directly causes injury, coverage is not defeated merely because there was no metal-to-metal or vehicle-to-person contact.

## Conclusion

The District of Montana held that Boulter was an insured under the Hartford UM endorsement because he was “getting in” the work van when he was injured while returning from a brief to-go breakfast stop during a continuous work trip, and it further ruled that the unidentified driver met the policy’s hit-and-run requirement under Montana law despite the lack of direct physical contact, entitling Boulter to UM coverage.


Boulter v. Hartford Fire Insurance Company, 321 F. Supp. 3d 1199 (2018)