dissenting.
Respectfully, I dissent.
The narrow question presented is whether Diana Lynn McKinney Reed fit the description of a person “occupying an insured automobile” at the time she was struck and killed on April 7, 1984. That term is defined in the Uninsured Motorist Coverage Endorsement of the Kentucky Farm Bureau Automobile Policy as follows:
“ ‘Occupying’ means in or upon or entering into or alighting from, with permission of the owner.”
At the particular point in time when Diana was struck, she stood 130-200 feet away from the vehicle, which was in a disabled condition, flagging on-coming traffic in an effort to avoid a collision. While surely her activity was “vehicle oriented,” and surely there was a “causal relation or connection between the injury and the use of the insured vehicle,” it is equally certain that her position and activity did not constitute “occupying an insured vehicle” as defined in the policy. The question here is whether “occupying” is synonymous with “use of the insured vehicle,” and the answer is it is not. The answer lies in understanding that, unlike liability coverage, the premise underlying uninsured motorist coverage is to protect persons insured rather than to insure vehicles against loss caused by their use.
The Majority Opinion is inconsistent in stating on the one hand that “Diana was physically outside and away from the disabled vehicle she formerly occupied,” but on the other hand that her position and activity should be classified as occupying because “this record does not reveal any act she took which was not directly connected to the disabled insured vehicle.” *169Accepting that her activities were “directly connected to the disabled insured vehicle,” nevertheless it is a contradiction in terms to define Diana’s status as that of a former occupant and then classify her as an occupant. The fact is that Diana was not “in,” nor “upon,” nor “entering into,” nor “alighting from” the disabled vehicle when she was struck, and no amount of legal legerdemain, no matter how well intended, can fit her within the definition of “occupying.” This is the sina qua non for Diana, who was not a person insured or a member of the insured’s household, to qualify as an additional insured within the uninsured motorist coverage of this policy.
The Majority Opinion appears to justify rewriting the policy definition of the term “occupying” on grounds of a public policy analysis derived from KRS 304.20-020, buttressed by material from Professor Alan Widiss’ treatise on Uninsured and Under-insured Motorist Insurance. The Majority Opinion states “[t]his uninsured motorist coverage results from the language of KRS 304.20-020 which mandates that such insurance be provided in automobile liability ... policies ..., subject, however, to rejecting in writing by the named insured.” While I respect both the general principles stated in the Majority Opinion and Professor Widiss’ reputation in the field, I find nothing in the statute to get us beyond the policy language. A case such as Hartford Accident & Indemnity Co. v. Booker, 140 Ga.App. 3, 230 S.E.2d 70 (1976), cited as “persuasive” in the Majority Opinion, imposing coverage where the injury is causally related to “use” even though such “use” would fall beyond a reasonable application of the term “occupying,” is distinguished from this one by the difference in statutory language. The Georgia statute in the Booker case required coverage for “any person who uses, with the consent, express or implied, of the named insured, the motor vehicle to which the policy applies.” Id. 230 S.E.2d at 72 (emphasis added). The Kentucky Uninsured Motorist Statute has no such statutory mandate.
When KRS 304.20-020 is analyzed carefully, what it requires is that when “automobile liability” policies are sold “insuring against loss ... suffered by any person arising out of the ownership, maintenance or use of a motor vehicle,” the insurer must also provide the policyholder uninsured motorist insurance unless the policyholder shall reject the coverage. The words “ownership, maintenance or use of a motor vehicle” in KRS 304.20-020 are used as part of the description of the term “liability policy”; they do not describe who must be extended uninsured motorist coverage beyond those persons specifically insured by the liability policy. The statute does not require that uninsured motorist coverage must extend to any person involved in the use of the vehicle in any form or fashion. If it did, I would agree with the result reached in the Majority Opinion.
Paraphrased for present purposes, KRS 304.20-020 provides:
No automobile liability policy shall be delivered in this state unless coverage is provided therein for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured vehicles.
The statute does not say that persons other than policyholders must be insured — only that, unless rejected, uninsured motorist coverage must be provided to the “persons insured.” It is a separate type of insurance added on to the liability policy. Who is insured is left to the policy definitions.
Nor does the Motor Vehicle Reparations Act (MVRA), KRS 304.39-010, et seq., which defines who must be insured for basic reparations benefits (BRB) and for tort liability, define who must be insured for uninsured motorist protection. KRS 304.39-080(5) requires “security for payment of tort liabilities, arising from maintenance or use of the motor vehicle,” and KRS 304.39-110 provides the “required minimum,” i.e., the policy limits, for “payment of tort liabilities,” and elsewhere in the MVRA KRS 304.39-030 provides for the right to BRB “from injury arising out of maintenance or use of a motor vehicle.” But, just as with the Uninsured Motorist Statute, nowhere in the MVRA is there statutory language mandating that the in*170surer must extend uninsured motorist coverage to persons other than an insured simply because their activity may be considered connected to the use of the vehicle. Thus compulsory insurance against tort liability for losses caused by the use of the vehicle is mandated by the MVRA, but no statute mandates uninsured motorist protection for the user unless the user falls within the policy definition of an insured person.
In sum, the key question in this case is not whether this tragic accident was one “arising out of the ownership, maintenance or use of a motor vehicle.” In KRS 304.-20-020 that phrase is part of the description of the “automobile liability or motor vehicle liability policy” which triggers the offer of uninsured motorist coverage; it does not describe the scope of the unin.sured motorist protection which must be offered along with the automobile liability policy. The statute requires no uninsured motorist protection for former occupants of the vehicle. It requires uninsured motorist protection for occupants as such only if they qualify as “persons insured” under the policy definitions. If the deceased (Diana) is to qualify for uninsured motorist protection under this policy, she must do so by fitting within the extended definition of persons insured found within the contractual language; she must meet the policy definition of “occupying” which then would qualify her as an insured. Unfortunately, she stepped considerably beyond that point.
SPAIN, J., joins this dissent.