An appellate court in Texas affirmed a trial court decision denying personal injury protection benefits to an insured who claimed he was injured while helping move metal roofing sheets after they were unloaded from a delivery truck.

After a hailstorm damaged the roof of Alan Kiely's home in Wimberly, Texas, Kiely ordered metal roofing sheets from a home center to repair the roof. They arrived in the bed of a delivery truck driven by home center employee Brian David Reeves. The sheets were bound in three bundles by length.

To prepare for the delivery, Kiely placed wooden pallets in front of his home for the arrival of the sheets. Kiely, who used a cane following knee surgery, was outside when Reeves arrived. After learning Reeves did not have a forklift, Kiely asked him to position the truck so its lift “could be used to tilt the bed and unload the metal sheets onto the pallets.”

Reeves complied but allegedly misaligned the truck with the pallets. Disregarding Kiely's suggested method of unloading the sheets, Reeves began moving the first bundle by hand, trying to unload them by himself. As he was pulling the first bundle, it slid off the truck bed and pinned him between the ground and the sheets.

Reeves screamed for Kiely to help him. Kiely grabbed a corner of the bundle and tried to lift it. As he did so, Kiely said, he heard a “pop” and immediately felt a sharp pain in his lower back. Kiely then located a plank, pushed it under the corner of the bundle and lifted it high enough to free Reeves. Kiely fractured two vertebrae in his lower back and underwent several surgeries.

Kiely sought PIP benefits from his personal auto insurer, Texas Farm Bureau Casualty Insurance Co., for his medical expenses following the incident. Farm Bureau concluded Kiely had no right to those benefits, and Kiely sued.

Arguing Kiely's injuries had not resulted from a motor vehicle accident and he was not a “covered person” under the insurance policy, Farm Bureau filed its motion for summary judgment, and it was granted.

Kiely appealed, arguing his injuries stemmed from a motor vehicle accident and he was a “covered person” as defined by the insurance policy.

The appellate court affirmed. In its decision, the court ruled Kiely's injuries had not resulted from a motor vehicle accident as required under the Farm Bureau insurance policy for him to recover PIP benefits.

The appellate court explained that, other than the truck being used to transport the metal sheets to Kiely's home, it was not directly involved in the circumstances leading up to Kiely's injuries. The appellate court noted Kiely was not exiting or entering the vehicle when he sustained his injuries, and he was not injured while removing or trying to remove the sheets from the truck bed.

Instead, the appellate court ruled, the “injury-producing event” occurred as a direct result of Kiely's “intentional act of lifting the metal sheets” off Reeves.

The appellate court also was not persuaded by Kiely's contention that his injuries resulted from the “use of a motor vehicle” since Kiely was not injured while loading or unloading the truck but rather was injured when he lifted the already unloaded metal sheets off Reeves. The appellate court said it could not find Kiely was injured as a result of a motor vehicle accident.

Finally, it decided Kiely was neither occupying the vehicle when he sustained his injuries nor struck by the vehicle and, therefore, was not a “covered person” under the policy and not entitled to PIP benefits.

The case is Kiely v. Texas Farm Bureau Casualty Insurance, No. 06-19-00012-CV (Tex. Ct. App. July 22).

Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. Meyerowitz is the Director of the Insurance Coverage Law Center and editor-in-chief of journals on insurance law, banking law, bankruptcy law, energy law, government contracting law, and privacy and cybersecurity law, among other subjects. Contact him at smeyerowitz@meyerowitzcommunications.com.