West American Insurance Co. v. Dickerson

LEIBSON, Justice.

Respectfully, I concur in results, but wish to state my reasons separately.

I would affirm the Court of Appeals’ reversal of the summary judgment only because there was some evidence from which to infer that the claimant had not physically completed the act of alighting from the car by breaking contact and taking a step. If she had not yet achieved the status of a pedestrian, she is still in the act of “alighting from” the vehicle.

We should decide the question of coverage for BRB benefits in this case on the positional risk theory which I advanced in State Farm Mut. Auto. Ins. Co. v. Rains, Ky., 715 S.W.2d 232 (1986) and Kentucky Farm Bureau Mut. v. McKinney, Ky., 831 S.W.2d 164 (1992): we should recognize coverage exists, or deny coverage exists, based on where the injury occurs rather than what caused the injury, just as we do in deciding whether an injury is work related in workers’ compensation cases.

STEPHENS, C.J., joins.