              IN THE COURT OF APPEALS OF TENNESSEE



MARGARET BROWN,                 )    C/A NO. 03A01-9509-CV-00308
                                )    SULLIVAN COUNTY LAW COURT
          Plaintiff,            )
                                )
v.                              )
                                )
                                )
                                                  FILED
GARY M. WHITE, RACHEL M. WEBER, )
KIMBERLY R. ANDERSON, and       )                   March 19, 1996
VFW POST NO. 3382,              )
                                )                 Cecil Crowson, Jr.
          Defendants,           )                 Appellate C ourt Clerk
                                )
and                             )
                                )    HONORABLE JOHN S. McLELLAN,III,
                                )    JUDGE
CUMIS INSURANCE SOCIETY,        )
                                )
          Uninsured Motorist    )
          Carrier/Appellant,    )
                                )
                                )
and                             )
                                )
                                )
STATE FARM MUTUAL AUTOMOBILE    )
INSURANCE COMPANY,              )
                                )
          Uninsured Motorist    )
          Carrier/Appellee.     )    AFFIRMED AND REMANDED



LARRY V. ROBERTS, Kingsport, for Appellant Cumis Insurance
Society

JACK M. VAUGHN, of MILLER & VAUGHN, Kingsport, for Appellee State
Farm Mutual Automobile Insurance Company




                           O P I N I O N


                                                  Susano, J.
          This case involves a question of uninsured motorist

insurance coverage.   It appears to be one of first impression in

the appellate courts of this state.    We are asked to decide if


                                 1
the plaintiff Margaret Brown was "entering" the automobile of her

friend, the defendant Kimberly R. Anderson, when she was struck

by an uninsured vehicle.             If she was, she is entitled to

uninsured motorist coverage as an "insured" under the automobile

insurance policy issued to Anderson by State Farm Mutual

Automobile Insurance Company (State Farm).                 The trial judge, in a

non-jury hearing, held that there was no coverage1.                  He found

that Brown was not “entering” the Anderson vehicle at the time of

the accident.           Therefore, he concluded that State Farm had no

obligations to Brown under the uninsured motorist feature of that

company’s policy.            Cumis Insurance Society, Brown's uninsured

motorist carrier, appeals the trial court’s judgment2.                     It

contends that Brown was “entering” and thus “occupying” her

friend's vehicle at the time of the collision, and that she was

therefore an “insured” under the State Farm policy3.                  We affirm

the judgment of the trial court.



                  The parties submitted this question of coverage to the

court on the depositions of Brown and Anderson, the transcript of

Brown’s interview by a State Farm adjustor, and the State Farm

         1
             The trial judge found as follows:

                  [Brown] was standing next to the door within one or
                  two feet it appears to her best judgment. But I think
                  under the terms of this particular policy that she had
                  not actually at that point in time initiated any sort
                  of move to reach for, open and enter into the vehicle
                  which appears was still
                  . . . locked and had not been opened so that she could
                  enter it. And that she was in the course of a
                  conversation with Bill Vaughn at the time that she was
                  struck and he was struck.
         2
             The judgment appealed from was entered pursuant to Tenn. R. Civ. P.
54.02.        It is appealable as of right under T.R.A.P. 3(a).
         3
       This particular phase of the captioned litigation involves only a
dispute between the two insurance companies. If State Farm’s policy covers
Brown in this accident, the parties acknowledge that its coverage is primary
and Cumis is secondary. If not, Cumis is the only uninsured motorist coverage
applicable to Brown.

                                             2
and Cumis policies.    In effect, the parties stipulated the

relevant and pertinent evidence.       There are few, if any, disputed

material facts.    In any event, our review of this appeal is de

novo.   The record comes to us accompanied by a presumption of

correctness that carries the day unless the evidence

preponderates against the trial court’s findings.      T.R.A.P.

13(d); however, there is no presumption of correctness as to the

trial court’s conclusions of law.       Union Carbide Corp. V.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).



                                   I



            On the evening of October 31, 1992, Anderson drove her

State Farm-insured Subaru automobile to Brown's house.       There,

she picked up Brown and the two went to the VFW in Kingsport to

attend a Halloween party.     Anderson parked her car on the

premises of the VFW, close to the entrance to the club.          They

arrived at the VFW sometime after 10 p.m.



            When the party was over, between 1:00 and 1:30 a.m.,

Brown and Anderson left the building and walked toward Anderson’s

car.    Anderson opened the trunk, closed it, and then proceeded to

the driver's side of the vehicle while Brown went to the

passenger's side.     Before Anderson could open her door and before

Brown had yet put her hand on the car’s passenger-side door, the

women were approached by two men who engaged them in

conversation.     The men had also been at the VFW.    While the women

were standing at the car's doors discussing with the men whether

they should all drive to a restaurant for breakfast, a car driven


                                   3
by an uninsured motorist came over onto the VFW's premises,

struck the Anderson vehicle, and hit Brown causing her injury.

At the time of the accident, Brown was less than five feet from

the car's door, and may have been as close as one to two feet.



              The pertinent language4 of State Farm's policy provides

as follows:



              SECTION III UNINSURED MOTOR VEHICLE COVERAGES

              A. UNINSURED MOTOR VEHICLE - COVERAGE U
              (Damages for Bodily Injury Caused by
              Uninsured Motor Vehicles)

                                  *     *     *

              We will pay compensatory damages for bodily
              injury an insured is legally entitled to
              collect from the owner or driver of an
              uninsured motor vehicle. The bodily injury
              must be caused by accident arising out of the
              operation, maintenance or use of an uninsured
              motor vehicle.

                                  *     *     *

              Who Is an Insured -- Coverage[] U . . .

              Insured -- means the person or persons
              covered by uninsured motor vehicle coverage.
              This is:

                    1.    the first person named in the declarations;

                                  *     *     *

                    4.    any other person while occupying:

                          a.   your car, . . .



State Farm defines certain words in the policy:




     4
         The bold and italicized language is as the same appears in the policy.

                                        4
                         DEFINED WORDS
         WHICH ARE USED IN SEVERAL PARTS OF THE POLICY

         We define some words to shorten the policy.
         This makes it easier to read and understand.
         Defined words are printed in bold face
         italics. You can pick them out easily.

                          *    *    *

          Occupying -- means in, on, entering or
          alighting from.



                               II



          In the interpretation of State Farm's policy, we are

guided by well-established principles:



          The analysis used in construing insurance
          policies is well settled. "Insurance
          contracts like other contracts should be
          construed so as to give effect to the
          intention and express language of the
          parties." Blaylock & Brown Construction,
          Inc. v. AIU Insurance Co., 796 S.W.2d 146,
          149 (Tenn. App. 1990). Words in an insurance
          policy are given their common and ordinary
          meaning. Where language in an insurance
          policy is susceptible of more than one
          reasonable interpretation, however, it is
          ambiguous. See e.g., Moss v. Golden Rule
          Life Insurance Co., 724 S.W.2d 367, 368
          (Tenn. App. 1986). Where the ambiguous
          language limits the coverage of an insurance
          policy, that language must be construed
          against the insurance company and in favor of
          the insured. Allstate Insurance Co. v.
          Watts, 811 S.W.2d 883, 886 (Tenn. 1991).



Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993).   We approach

our task with these principles in mind.



          Both of the parties rely upon the cases of Tata v.

Nichols, supra, and Younger v. Reliance Ins. Co., 884 S.W.2d 453

                                5
(Tenn. App. 1993).   It is true that the court in each of those

cases dealt with a definition of "occupying" substantially

similar to the definition in the case at bar.     Tata at 650 ("in,

upon, getting in, on, out or off" in one policy and "in or upon

or entering into or alighting from" in the other); Younger at 455

("in, upon, getting in, on, out or off").    It is also true that

in each of these cases, the court had to decide whether the

individual hit by an uninsured motorist was "occupying" the

insured vehicle at the time of the accident; but that is where

the significant similarities end.     In the Tata case, the Supreme

Court was confronted with the following issue:



           . . . whether, for purposes of summary
           judgment, the plaintiff was "upon" either or
           both vehicles at the time of his injury, and
           was, therefore, an "insured" within the
           meaning of the policies.



Id. at 650.   (Emphasis Added).   Younger likewise examined the

concept of "upon" as found in the definition of “occupancy” in

that case.    Younger, 884 S.W.2d at 455.   The instant case does

not involve the concept of "upon" as examined in Tata and

Younger.   This is clear from the appellant’s brief:



           This case involves interpretation of an
           insurance contract as to whether Brown was
           “entering” and therefore “occupying” the
           Anderson vehicle when the accident occurred.



(Emphasis Added).    Furthermore, the trial court focused on and

decided this case on the concept of “entering.”     Thus, it is

clear that the question before us is the meaning of the word


                                  6
"entering" and not the meaning of the word "upon."            As Tata

points out, since the definition of “occupying” contains a number

of words that are separately stated, that definition

presumptively addresses different concepts:



              . . . unless "upon" should be considered to
              have no meaning, it includes some
              relationship different from "in," "getting
              in," "getting on," "getting out," and
              "getting off" within the meaning of the
              Maryland Casualty policy, and "in," "entering
              into" and "alighting from" in the Allstate
              policy.



Id. at 653.      We believe “entering” is a different concept from

“upon” as those words are used in the State Farm policy.             Our

focus is on the concept of “entering.”



              While the analysis5 utilized by the Tata and Younger

courts is helpful in our review of the facts in the instant case,

we do not believe that either case is controlling on us as we

attempt to define “entering” and apply that concept to the facts

of this case.      In Tata, the Supreme Court determined that "[t]he

complete meaning of the term 'upon' . . . is uncertain."             Id. at

651.       It concluded that the word “upon” was one that "require[d]

construction."       Id.   The issue before us is whether the meaning



       5
       In Tata, the Supreme Court had to decide if the plaintiff was “upon”
two cars facing each other on the side of the road as he and another tried to
“jump-start” one of the cars. Finding that “upon” was a word of “uncertain”
meaning, the court examined the plaintiff’s relationship to each of the
vehicles, noting his “geographic and spatial proximity to both vehicles” and
the fact that he was “directly engaged in activities involving both vehicles.”
Tata 848 S.W.2d 649 at 653. The court concluded that the plaintiff was “upon”
both vehicles. Younger was decided 11 days after Tata and employed the same
type analysis of the word “upon.” While we do not believe those cases are
controlling when the inquiry involves the concept of “entering,” we believe
the result would be the same in this case if the Tata/Younger analysis was
applicable.

                                      7
of the word "entering" as used in the State Farm policy is

likewise uncertain.



          We believe the word "entering" has a "common and

ordinary meaning," that is clear and unambiguous.   The word

"enter," as used in the State Farm policy, is defined in

Webster's Encyclopedic Unabridged Dictionary of the English

Language, 476 (1989) as a transitive verb:



          --v.t. 5. to come or go into: . . . 6. to
          penetrate or pierce: . . . 7. to put in or
          insert



Another dictionary defines the word "enter" as follows:



          --Transitive: 1. to come or go into; to pass
          into the interior of; to pass within the
          outer cover or shell of; penetrate; pierce;
          as to enter a house; rivers enter the sea.



Webster's New International Dictionary, 2nd ed. Unabridged 853

(1958).   Several courts have held that the meaning of the word

“entering” is clear and unambiguous.   See e.g., Marcilionis v.

Farmers Insurance Company of Oregon, 318 Or. 640, 871 P.2d 470,

472 (Or. 1994); Floyd v. J. C. Penney Casualty Insurance Company,

193 Ga. App. 350, 387 S.E.2d 625, 626 (Ga. App. 1989); Carter v.

Travelers Indemnity Company, 146 So.2d 257, 259 (La. App. 1962).



           As far as we can ascertain, this is the first time that

a Tennessee appellate court has been asked to construe and apply

the concept of “entering” as found in the definition of


                                 8
“occupying” in the uninsured motorist insurance context.        There

are, however, cases from other jurisdictions that have examined

this particular concept.



            In Marcilionis v. Farmers Insurance Company of Oregon,

supra, the Supreme Court of Oregon construed the meaning of the

word "occupying" in the context of Oregon's uninsured motorist

statutes.   One provision of that statutory scheme required that

such coverage be afforded to an individual "in or upon or

entering into or alighting from" a vehicle.        Id. 871 P.2d at 472.

The court, "[g]iving the words used in the statute . . . their

natural, plain, and ordinary meaning," id., concluded that an

individual is "entering into" an insured vehicle



            when a part of that person makes physical
            contact with the car in a manner that in the
            ordinary course would lead directly to
            entrance or penetration into the car.



Id. At 472-73.    In the Marcilionis case, the plaintiff was

driving the insured's car.    A woman entered the car unexpectedly,

removed the keys, and ran from the car.        The plaintiff left the

car and gave chase.    The woman threw the keys.      "[W]hile in the

act of picking up the keys," the plaintiff was struck by an

uninsured motorist.    Id. At 471.       The Oregon Supreme Court

concluded that the plaintiff was not "occupying" the vehicle at

the time of the accident.



            The same definition of "occupying" was involved in the

case of Allstate Insurance Company v. Horn, 24 Ill. App. 3d 583,



                                     9
321 N.E.2d 285 (Ill. App. 1974).      In that case, the claimant was

attempting to cross six lanes of traffic to reach the insured

vehicle after leaving a restaurant.     He was struck by an

uninsured car when he was 24 feet from the insured vehicle.      The

court in Allstate Insurance Company concluded that there was no

coverage, observing



          . . . one who is 24 feet from a vehicle is
          not "entering into" it, and therefore not
          "occupying" it, within the meaning of the
          policy.



Id. 321 N.E.2d at 291.



          In Carter v. Travelers Indemnity Company, 146 So.2d 257

(La. App. 1962), the court concluded that the word "entering" as

used in a policy definition of "occupying" was "clear and

unambiguous."   Id. at 259.   In that case, the plaintiff had

opened the door of the insured car, and his female companion had

entered the car.   The plaintiff also intended to enter the

vehicle; but he heard the squeal of brakes, realized that an

oncoming car was going to strike the insured vehicle, and tried,

unsuccessfully, to pull his companion from the car "in order that

they might reach a place of safety."      Id. at 258.   A collision

ensued and the plaintiff was injured.      The court in Carter

concluded that the policy afforded coverage to the plaintiff

because he was "entering into" the vehicle and hence "occupying"

it under the language of the policy.      The court referred to the

dictionary and held that "entering" was "an affirmative act or

movement to effect an entrance."      Id. at 259.   The court rejected



                                 10
the insurer's argument that the plaintiff "had abandoned his

intention of entering the vehicle."   Id.   The court opined:



          This contention, in view of the preponderance
          of the testimony from which we have quoted,
          is not sustained. The conclusion is
          inescapable that [the plaintiff] was entering
          the automobile at the time of the collision;
          that there had been no abandonment of either
          his intention or effort to do so.



Id. at 259.



          In McCaslin v. Hartford Accident & Indemnity, 182 Mich.

App. 419, 452 N.W.2d 834 (Mich. App. 1990), the plaintiff stopped

at a self-service gasoline station.   After he went inside and

paid for his gas, he returned outside to get in his vehicle.     As

he was walking between the rear of his truck and the front of a

car that had pulled up behind his vehicle, he was pinned between

the bumpers when the other car lurched forward.    The court found

that the plaintiff was not entitled to benefits under a statute

allowing a recovery to one "entering into" the vehicle.    The

court opined as follows:



          In this case, plaintiff had not crossed the
          plane or threshold of the truck's door, nor
          had he even made physical contact with the
          truck's door when the accident occurred.
          Given the plain meaning of [the statute],
          plaintiff is not a person entitled to
          benefits under the no-fault act as a person
          "entering into" a parked vehicle.



Id. at 835.




                               11
           Language similar to that in the instant case has been

construed in still other cases.     Floyd v. J. C. Penney Casualty

Insurance Company, 193 Ga. App. 350, 387 S.E.2d 625 (Ga. App.

1989) ("in or upon a motor vehicle or engaged in the immediate

act of entering into or alighting from the motor vehicle");

Testone v. Allstate Insurance Company, 165 Conn. 126, 328 A.2d

686 (Conn. 1973) ("in or upon or entering into or alighting

from").    In Floyd, the court held that the plaintiff was not

"engaged in the immediate act of entering into" the vehicle when

she fell approaching the vehicle, some eight feet away from it.

Id. 387 S.E.2d at 627.     In Testone, the Supreme Court of

Connecticut held that plaintiff who was "immediately adjacent,"

id. 328 A.2d at 688, to the vehicle intending to enter it when he

was struck, was not entering the vehicle and hence not entitled

to benefits under the policy of insurance providing coverage for

one "entering into" the vehicle.        Id. at 691.   That court held

that the "act of approaching [was] not the equivalent of the act

of entering."     Id.   As in the instant case, the plaintiff in

Testone was "two to three feet from the vehicle when it was

struck."    Id.



                                   III



            When Brown's status vis-a-vis Anderson's vehicle is

analyzed in the context of the clear meaning of the word

"entering," we do not believe that she can be said to have been

"entering" the vehicle at the time of the accident.         The

following testimony by Brown is particularly telling:



                                   12
         Q. Were you entering the vehicle when the
         accident occurred?

         A. I was going to enter it.         Yes, I was
         going to get in that car.

                            *    *       *

          Q. And what were you doing when the accident
          occurred?

          A. I was by the car going to get into the
          car.

          Q.   All right.   Thank you.

          A.   That was what I was going to do.

          Q.   All right.   That's fine.

          A. I hadn't got there yet, but I was going
          to do that.



Brown told the State Farm adjustor, “I didn’t have my hands on

the car no.”



          As other cases have pointed out, there is a difference

between intending to enter a vehicle and actually entering it.

When Brown and Anderson went inside the VFW, they clearly lost

their connection with Anderson's vehicle.        Was that connection

re-established prior to the accident?        We think not.   We do not

believe that walking toward a vehicle can be construed as

"entering" it.   We believe that the word "entering" requires more

than an intent to enter.    In the words of the court in Carter,

there was no “affirmative act or movement to effect an entrance.”

146 So.2d at 259.   Here, there was admittedly no contact by Brown

with any part of the car at the time of the accident.        In fact,

at the time of the accident, both Brown’s and Anderson's

attention had been diverted from the car and toward the two men

who had engaged them in conversation.

                                 13
          We believe our holding is consistent with the statutory

mandate that uninsured motorist coverage must extend to “persons

legally entitled to recover damages from an uninsured motorist,

if the damages arise ‘out of the ownership, maintenance, or use’

of the insured car.”   Tata 848 S.W.2d at 654 (quoting from T.C.A.

§ 56-7-1201(a)).   Brown’s relationship with the Anderson vehicle

at the time of the accident was not such as to bring into play

“the ownership, maintenance, or use” of that car.



          We cannot say that the evidence preponderates against

the trial court’s judgment that Brown was not “entering” the

Anderson vehicle at the time of the accident.



          The judgment of the trial court is affirmed.    This

cause is remanded to the trial court for the collection of costs

assessed there, pursuant to applicable law.    Costs on appeal are

taxed and assessed to the appellant and its surety.




                                 _________________________________
                                 Charles D. Susano, Jr., J.


CONCUR:


___________________________
Houston M. Goddard, P.J.



______________________________
Don T. McMurray




                                  14
