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AETNA CAS. & SUR. CO. v. KEMPER INS. CO.

March 19, 1987

Aetna Casualty & Surety Company
v.
Kemper Insurance Company, Carriers Insurance Company, Cleve Smith and Larry Kendricks



The opinion of the court was delivered by: DITTER

 DITTER, J.

 This insurance case comes before the court on stipulated facts and cross motions for summary judgment that raise alternative questions: (1) whether two injured men were "occupants" of a motor vehicle, and if not, (2) whether an insured vehicle was "parked so as to cause unreasonable risk of injury."

 On June 15, 1984, Cleve Smith was lawfully driving and Larry Kendricks was a passenger in a Cadillac automobile owned by Smith's girlfriend. This car was insured by plaintiff Aetna Casualty and Surety Company. Smith stopped the Cadillac on Route 22 to help a friend, Alvin Perry, whose pick-up truck was broken down. Defendant Kemper Insurance Company insured Perry's pick-up truck. Smith parked on the shoulder of the road four to five feet from where Perry's truck was stopped. While Smith was looking under the hood of the pick-up and Kendricks was standing nearby, both were injured when a tractor-trailer hit the rear of the pick-up. The accident occurred five to twenty minutes after Smith and Kendricks had stopped to help Perry. As a result of the accident, Aetna paid no-fault benefits to Smith and Kendricks. Because the tractor-trailer's insurance carrier has been liquidated and severed from this action, either Aetna, Kemper, or both are liable for the no-fault claims of Smith and Kendricks.

 Pennsylvania's No-Fault Act established a seriatim order for the payment of basic loss benefits. 40 Pa. Cons. Stat. Ann. ยง 1009-204(a) (repealed). Pursuant to this section, the "security", i.e., the insurer responsible for payment of benefits, is determined by the status of the injured. The "security" for injury to:

 
(a) . . .
 
(1) . . .
 
(2) . . .
 
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
 
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
 
(5) . . .

 Id. The parties agree that subparagraphs (1), (2), and (5) are inapplicable. Kemper contends that Smith and Kendricks were "occupants" of the Cadillac at the time of the accident; therefore, Aetna is responsible for their claims. In addition, Kemper asserts that if Smith and Kendricks were not "occupants" then the Cadillac was parked so as to cause unreasonable risk of injury; therefore, both vehicles are liable under subparagraph (4). *fn1"

 In Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Pennsylvania Supreme Court held that a person "occupies" a vehicle if he satisfies four criteria:

 
(1) there is a causal relation or connection between the injury and the use of ...

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