May 5, 2017


                                                               Supreme Court

                                                               No. 2016-19-Appeal.
                                                               (PC 12-1793)


Jeanne Jackson, Executrix of the Estate of   :
      Anthony J. Esposito, Jr. et al.

                    v.                       :

     Quincy Mutual Fire Insurance            :
           Company et al.




              NOTICE: This opinion is subject to formal revision before
              publication in the Rhode Island Reporter. Readers are requested to
              notify the Opinion Analyst, Supreme Court of Rhode Island,
              250 Benefit Street, Providence, Rhode Island 02903, at Telephone
              222-3258 of any typographical or other formal errors in order that
              corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2016-19-Appeal.
                                                                  (PC 12-1793)
                                                                  (Concurrence and Dissent
                                                                  Begin on Page 12)


Jeanne Jackson, Executrix of the Estate of    :
      Anthony J. Esposito, Jr. et al.

                     v.                       :

      Quincy Mutual Fire Insurance            :
            Company et al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court on March 8,

2017, on appeal by the plaintiff, Jeanne Jackson (plaintiff) as Executrix of the Estate of Anthony

J. Esposito, Jr. (decedent), from a grant of summary judgment in favor of the defendant, Quincy

Mutual Fire Insurance Company (defendant or Quincy Mutual). For the reasons set forth herein,

we vacate the judgment of the Superior Court.

                                        Facts and Travel
       The facts of this case, which we glean from the filings of the parties, are tragic. On

September 9, 2011, decedent was riding his motorcycle on Route 6 in Providence when what has

been described as a green trash barrel fell from a passing truck and entered the decedent’s lane of

travel. The barrel collided with the motorcycle and became wedged in its front tire. The

decedent lost control of the motorcycle and was ejected into the adjacent lane of travel. The

decedent struck the ground, rolled into the high-speed lane, and was hit by a car traveling in that

lane. He died from his injuries.


                                                -1-
        The motorcycle was insured with the Foremost Insurance Company, which provided

limited liability insurance but did not provide uninsured motorist (UM) coverage. Although the

decedent did not have UM coverage from his motorcycle policy, he also owned an automobile

that was insured with Quincy Mutual. The policy with Quincy Mutual (the Quincy Mutual

policy) did have UM coverage. However, there was an exclusion to the UM coverage, which is

the subject of this dispute. The exclusion section (A.1.) of the Quincy Mutual policy reads as

follows:

                “We do not provide Uninsured Motorists Coverage for ‘bodily
                injury’ sustained: By an ‘insured’ while ‘occupying’, or when
                struck by, any motor vehicle owned by that ‘insured’ which is not
                insured for this coverage under this policy.”

The definitions section (G.) of the Quincy Mutual policy reads as follows: “‘Occupying’ means

in, upon, getting in, on, out or off.”

        The plaintiff, as executrix of decedent’s estate, brought a declaratory judgment action in

Superior Court, declaring that the estate was entitled to UM coverage under the Quincy Mutual

policy. Quincy Mutual moved for summary judgment, stating that the exclusion clause bars

plaintiff from recovery because decedent was “occupying” his owned-but-not-insured

motorcycle at the time of the fatal injury.

        On September 29, 2015, a hearing was held on the motion, during which plaintiff argued

that there were disputed issues of material fact as to which of the two collisions was the cause of

decedent’s death—the first collision with the trash barrel, which caused decedent to lose control

of the motorcycle, or the second impact from the passing car. The plaintiff claimed that the

timing between the two collisions was a critical factor in determining whether decedent was

“occupying” the motorcycle at the time of his death as that term is defined in the Quincy Mutual

policy. The motion justice acknowledged that “the coroner couldn’t even tell which accident

                                               -2-
killed [decedent], whether it was the barrel being thrown or getting hit from the car.”

Notwithstanding this question of fact, the motion justice, relying on this Court’s holding in

General Accident Insurance Co. of America v. Olivier, 574 A.2d 1240 (R.I. 1990),1 concluded

that, under Olivier, decedent was occupying his motorcycle at the time of his death.

Accordingly, the motion justice granted summary judgment in favor of Quincy Mutual. An

order granting partial summary judgment was entered on October 16, 2015, from which plaintiff

timely appealed.

                                     Standard of Review

       “Summary judgment is ‘a drastic remedy,’ and a motion for summary judgment should

be dealt with cautiously.” Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008)

(quoting Ardent v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). “It is important to

bear in mind that the ‘purpose of the summary judgment procedure is issue finding, not issue

determination.’” Id. at 391 (quoting Industrial National Bank v. Peloso, 121 R.I. 305, 307, 397



1
 In General Accident Insurance Co. of America v. Olivier, 574 A.2d 1240 (R.I. 1990), this Court
adopted four factors set forth by the Pennsylvania Supreme Court in Utica Mutual Insurance Co.
v. Contrisciane, 473 A.2d 1005 (Pa. 1984) in order to determine whether an occupant of a motor
vehicle comes within the term “occupying” as defined in an insurance policy. Those factors are
as follows:

              “(1) there is a causal relation or connection between the injury and
              the use of the insured vehicle;

              “(2) the person asserting coverage must be in a reasonably close
              geographic proximity to the insured vehicle, although the person
              need not be actually touching it;

              “(3) the person must be vehicle oriented rather than highway or
              sidewalk oriented at the time; and

              “(4) the person must also be engaged in a transaction essential to
              the use of the vehicle at the time.” Olivier, 574 A.2d at 1241
              (quoting Utica Mutual Insurance Co., 473 A.2d at 1009).
                                             -3-
A.2d 1312, 1313 (1979)); see also Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981) (“[I]n ruling

on a motion for summary judgment, the trial justice must look for factual issues, not determine

them.”).

       “Summary judgment is appropriate only when the ‘pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as [a]

matter of law.’” Sola v. Leighton, 45 A.3d 502, 506 (R.I. 2012) (quoting Plunkett v. State, 869

A.2d 1185, 1187 (R.I. 2005)). “Only when a review of the admissible evidence viewed in the

light most favorable to the nonmoving party reveals no genuine issues of material fact, and the

moving party is entitled to judgment as a matter of law, will this Court uphold the trial justice’s

grant of summary judgment?” Id. (quoting National Refrigeration, Inc. v. Standing Contracting

Co., 942 A.2d 968, 971 (R.I. 2008)). “This Court reviews de novo a trial justice’s decision

granting summary judgment.” Id. (quoting Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424

(R.I. 2009)).

                                             Analysis

       Before this Court, plaintiff contends that summary judgment was inappropriate in this

case because decedent was separated from his motorcycle “in distance, time, and place” at the

time of his death and therefore, was not occupying the motorcycle as that term is defined in the

Quincy Mutual policy. Specifically, plaintiff asserts that there were two separate collisions; the

first of which occurred when the trash barrel became lodged in the front tire of the motorcycle

and caused decedent to fall off, and the second when decedent was hit by an oncoming vehicle

after landing in the high-speed lane of travel. The plaintiff seeks recovery for the injuries

sustained as a result of the second collision when, according to plaintiff, decedent was no longer



                                               -4-
an occupant of the motorcycle but was lying in the roadway after having been ejected from the

motorcycle.   The plaintiff submits that this distinction is critical to the determination of

occupancy under the Quincy Mutual policy.

       Quincy Mutual responds that the sequence of events was instantaneous and that the

sequential distinction in this case is insignificant based on the causal connection between

decedent’s use of the motorcycle and his subsequent death. The defendant argues that the

motion justice properly relied on the four prongs of Olivier, in determining occupancy, and

submits that this Court should decline to depart from our holding in Olivier, in favor of

plaintiff’s two-collision theory. Notwithstanding this argument, defendant disputes that decedent

died as a result of the second impact; rather, defendant points to deposition testimony suggesting

that decedent may have died upon striking the ground after the trash barrel collided with his

motorcycle.

       Although this case is not the first occasion on which this Court has been called upon to

interpret the term “occupying” as defined in an insurance contract, see Olivier, 574 A.2d at 1241;

see also D’Antuono v. Narragansett Bay Insurance Co., 721 A.2d 834 (R.I. 1998), we have not

been called upon to address the term in the context of two collisions. Nor have we had occasion

to examine an automobile policy provision that is designed to exclude an owner from the

protections of his policy. We look first to the pertinent terms of the Quincy Mutual policy.

       Generally, when reviewing an insurance policy, “[w]e shall not depart from the literal

language of the policy absent a finding that the policy is ambiguous.” Allstate Insurance Co. v.

Ahlquist, 59 A.3d 95, 98 (R.I. 2013) (quoting Beacon Mutual Insurance Co. v. Spino Brothers,

Inc., 11 A.3d 645, 649 (R.I. 2011)); see also General Accident Insurance Co. of America v.

D’Alessandro, 671 A.2d 1233, 1235 (R.I. 1996) (“In interpreting the contractual language of an



                                               -5-
insurance policy, ‘[we give] the language used in the policy * * * its plain, ordinary, and usual

meaning.’” (quoting Malo v. Aetna Casualty and Surety Co., 459 A.2d 954, 956 (R.I. 1983))).

       The plain language of the Quincy Mutual policy defines “occupying” as “in, upon,

getting in, on, out or off.” Although in Olivier, 574 A.2d at 1243, this Court accorded a broad

and liberal interpretation to the term “occupying” as it related to a passenger in an insured

vehicle, we recently recognized a distinction between insurance contract provisions that

encompass coverage for persons other than the named insured from those policy provisions that

exclude an insured from coverage protection. See Peerless Insurance Co. v. Luppe, 118 A.3d

500, 510 (R.I. 2015). Specifically, we acknowledged the “general principle favoring broad

coverage” as the controlling standard. Id. (quoting Aetna Life and Casualty Co. v. Carrera, 577

A.2d 980, 983 (R.I. 1980)). The general principle was summarized as follows:

               “[W]here the policy provision under examination relates to the
               inclusion of persons other than the named insured within the
               protection afforded, a broad and liberal view is taken of the
               coverage extended. But, if the clause in question is one of
               exclusion or exception, designed to limit the protection, a strict
               interpretation is applied.” Id. (quoting Mazzilli v. Accident &
               Casualty Insurance Co. of Winterthur, Switzerland, 170 A.2d 800,
               804 (N.J. 1961)).
Accordingly, the guidepost in determining whether to apply a broad and liberal view of the terms

in an insurance policy or whether a strict interpretation of the language is more appropriate is

whether the language relates to inclusion of persons within the policy or exclusion of the insured

from protection.

       Although neither party cited Peerless Insurance Co., 118 A.3d at 510, Quincy Mutual

argues that decedent—the named insured under its policy—is excluded from coverage based on

the policy provision defining occupancy and it relies on this Court’s holding in Olivier as support




                                               -6-
for that contention.2 Because the owned-but-not-insured provision of the Quincy Mutual policy

is a clause of exclusion designed and intended to limit the protection afforded to Quincy

Mutual’s insureds, a strict interpretation of the term “occupying,” as defined in the Quincy

Mutual policy, must be employed. See Peerless Insurance Co., 118 A.3d at 510. The pivotal

question, therefore, is whether, at the time of the fatal injury, decedent was “in, upon, getting in,

on, out or off” the motorcycle. A strict interpretation of the Quincy Mutual policy leaves open

the overarching uncertainty of which collision caused decedent’s fatal injuries. It is not disputed

that at the time of the first impact, decedent was on the motorcycle and driving on the highway.

The question governing this controversy, however, is whether he was “in, upon, getting in, on,

out or off” the motorcycle at the time he was struck by the passing motor vehicle.

       We look for guidance to our sister states that have considered the term “occupying” in

this context. See Kedy v. A.W. Chesterton Co., 946 A.2d 1171, 1182 (R.I. 2008) (“When our

own procedural rules and our case law are silent on a particular issue, ‘[i]t makes eminent good

sense to consider the experience and the reasoning of the judges in other jurisdictions * * *.’”

(quoting Ciunci, Inc. v. Logan, 652 A.2d 961, 962 (R.I. 1995))). In Farmers Insurance Co. of

Washington v. Clure, 702 P.2d 1247 (Wash. Ct. App. 1985), the Court of Appeals of Washington

considered whether an insured, who was injured as a result of striking the ground after being

thrown from his motorcycle in a collision with an uninsured motorist, was “occupying” the

motorcycle, and thus precluded from recovering UM benefits. Id. at 1248. The court examined

the term “occupying” in the context of an exclusionary policy provision that was defined as “in,

on, getting into or out of,” id. at 1249, and determined that the average insured “would not

2
  Quincy Mutual also relies on this Court’s decision in D’Antuono v. Narragansett Bay Insurance
Co., 721 A.2d 834 (R.I. 1998), and argues that the cases are indistinguishable. We reject this
comparison as the facts of this case are based on two impacts, and thus are separate and distinct
from the one collision in D’Antuono.
                                                -7-
reasonably conclude that the exclusion from coverage was merely dependent upon the fortuitous

circumstance that a portion of his or her body remained in physical contact with the motorcycle

at the precise moment of injury.” Id. at 1250. Rather, the court concluded that, “in any

motorcycle accident the passenger is almost certainly going to be thrown violently from the

vehicle * * *.” Id. (quoting Greer v. Northwestern National Insurance Co., 674 P.2d 1257, 1264

(Wash. Ct. App. 1984)). The court held that, because the insured was injured as a result of the

immediate impact with the ground after being thrown from the motorcycle, he was occupying the

motorcycle at the time of his injuries. Id.

       Ten years later in Mid-Century Insurance Co. v. Henault, 905 P.2d 379 (Wash. 1995), the

Supreme Court of Washington considered the circumstance of two collisions in deciding whether

the insured was occupying her motorcycle when she was struck by an uninsured motorist as she

lay in the roadway after having been ejected in an earlier collision. See id. at 381. Significantly,

in Henault, the Washington Supreme Court distinguished Clure based on the fact that there were

two separate collisions. Id. at 382-83. The court noted that, “[decedent] does not seek coverage

for injuries sustained when she was thrown to the pavement in the first collision * * * [r]ather,

she seeks coverage for injuries she sustained when she was struck by [a second vehicle] as she

lay in the roadway sometime after having been ejected from her motorcycle in the first

collision.” Id. at 383. The Washington court held that, because “exclusionary clauses are to be

construed strictly against the insurer,” id. at 382, it was “reasonable to conclude that when the

second impact occurred, [insured], who had been lying in the roadway for an unspecified period

of time, clearly was not ‘in, on, getting into, or getting out of’ her motorcycle and therefore she

was not ‘occupying’ it.” Id. at 383.




                                               -8-
       Likewise, in Miller v. Amica Mutual Insurance Co., 931 A.2d 1180 (N.H. 2007), the

decedent was riding his motorcycle when the tire got caught in a rut in the roadway; he was

ejected from the motorcycle and was fatally struck by an oncoming vehicle while lying in the

road. Id. at 1181. The decedent’s estate brought a claim to recover UM benefits under an

automobile policy owned by the decedent, but was precluded from recovery based on the

policy’s exclusionary clause, which defined “occupying” as “in, upon, getting in, on, out or off”

of a vehicle. Id. The court observed that, regardless of whether the issue is “framed in temporal

terms or spatial terms,” “a reasonable person in the position of the insured would not view

someone lying in the middle of the highway forty feet from his motorcycle for a period of time

between thirty seconds [and] one and a half minutes as ‘in, upon, getting in, on, out or off’ that

motorcycle.”   Id. The court concluded that the decedent’s estate was not precluded from

recovery under the insurance policy because the decedent was not occupying his motorcycle at

the time of his fatal injuries. Id. at 1186; see also Swarner v. Mutual Benefit Group, 72 A.3d

641, 650-51 (Pa. Super. Ct. 2013) (holding that decedent, who was ejected from her motorcycle

and lying in the roadway, was no longer “occupying” the motorcycle when she was struck by a

passing truck because she was no longer “on” or in the process of “[g]etting in, on, out or off” of

the motorcycle).

       The defendant argues that the facts before this Court differ from those of Henault and

Miller, based on a temporal distinction between the two collisions, as compared to the disputed,

but potentially almost simultaneous impacts in the case at bar. The defendant directs our

attention to Dunlap v. United States Automobile Association, 470 So. 2d 98 (Fla. Dist. Ct. App.

1985) and Partridge v. Southeastern Fidelity Insurance Co., 323 S.E.2d 676 (Ga. Ct. App. 1984),

in support of what defendant submits is the absence of a “significant break in time” between the



                                               -9-
two impacts. These cases are distinguishable both on their facts and the courts’ utilization of an

Olivier-type broad and liberal view of the term “occupying.”

       In Dunlap, 470 So. 2d at 99, the insured was ejected from his motorcycle and then

immediately run over by a taxi. The court held that the concept of “occupying” included a

motorist who is struck by a passing vehicle “immediately following” an accidental ejection from

the motorcycle. Id. at 100. And, in Partridge, 323 S.E.2d at 677, the court determined that the

decedent, who was struck by a vehicle while lying in the road after having been ejected from his

own motor vehicle, was “occupying” his motor vehicle at the time of the injury because the

decedent had not “remove[d] himself to a neutral zone” before the fatal injury. Significantly,

however, both the Dunlap and Partridge courts focused on the reasoning of United States Fidelity

& Guaranty Co. v. Daly, 384 So. 2d 1350 (Fla. Dist. Ct. App. 1980)—a case in which the court

broadly interpreted the term “occupying” for purposes of inclusion within an insurance policy

providing personal injury protection benefits. Id. at 1350-51. Because the reasoning in these

cases is not the law in this state, we reject defendant’s contentions.

       The plain language of the Quincy Mutual policy, which we construe against the insurer,

defines “occupying” as “in, upon, getting in, on, out or off.” Given this language, if decedent

died from the resulting impact with the roadway after the first collision with the trash barrel, or

in such a circumstance that the second impact was so close in time and proximity as to be

considered simultaneous, it could be found, as the court did in Clure, that he was occupying his

motorcycle at the time he was fatally injured. In that case—as harrowing as the image may be—

decedent was indeed “getting off” his motorcycle at the time of the fatal injury.3 However, if, as



3
  The concurring and dissenting opinion observes that the definition of “getting off” cannot
possibly encompass an accidental ejection from a motorcycle because the process of “getting
off” “connotes active and volitional activity.” We quote Sir Isaac Newton: “What goes up must
                                                - 10 -
plaintiff suggests, a factfinder determines that decedent died as a result of the second impact with

the vehicle after landing on the ground and rolling into oncoming traffic, a strict interpretation of

“occupying” would proceed in accordance with Henault and Miller. Unquestionably, if decedent

was fatally injured as a result of the second impact, while he was lying in the road, he clearly

was not “in, upon, getting in, on, out or off” of his motorcycle at the time he was struck. His

status could no longer be that of a motorcycle occupant, but only a helpless victim in the

roadway.    Of course, these are questions that are committed to the factfinder and are not

amenable to summary judgment.           See School Committee of North Providence v. North

Providence Federation of Teachers, Local 920, 468 A.2d 272, 275 (R.I. 1983) (“[f]actual

disputes are the sole province of the finder of fact”).

       We recognize that a strict interpretation of the term “occupying” in circumstances where

the contested policy seeks to exclude the insured from coverage is a departure from the factors

enunciated in Olivier—a case in which the policy provision was inclusory. Moreover, we mirror

the Miller court’s sentiment that “[i]t may be counterintuitive to analyze [occupancy] without

considering whether the accident would have occurred if the decedent had never been upon his

motorcycle in the first place.” Miller, 931 A.2d at 1185.             However, faced with these

circumstances, “that is precisely what must be done * * * for the policy’s plain language does not

provide otherwise.” Id.; see also New London County Mutual Insurance Co. v. Fontaine, 45



come down.” As the centuries-old tale goes, Sir Isaac was drinking tea under an apple tree when
an apple fell from the tree and landed on his head, thus, leading to Sir Isaac’s theory of the
Universal Law of Gravity, which requires only a force acting upon an object to cause its
movement, and not a formation of intent. We are therefore abundantly satisfied that someone
who gets on a motorcycle and is unintentionally ejected from the motorcycle, and is injured upon
impact with the earth, was injured in the course of getting off the motorcycle. See Farmers
Insurance Co. of Washington v. Clure, 702 P.2d 1247, 1250 (Wash. Ct. App. 1985) (“[A] fair
and ordinary meaning * * * of the phrase * * * ‘while occupying’ refers to injuries sustained
when thrown from a vehicle during a collision.”).
                                                - 11 -
A.3d 551, 557 (R.I. 2012) (stating that, when interpreting the provisions of an insurance policy,

“we look within the ‘four corners of [the] policy, viewing it in its entirety, [and] affording its

terms their plain, ordinary and usual meaning’” (quoting Town of Cumberland v. Rhode Island

Interlocal Risk Management Trust, Inc., 860 A.2d 1210, 1215 (R.I. 2004))); Miller, 931 A.2d at

1185 (“If [the insurer] wished to exclude from coverage injuries arising out of the use of—as

opposed to ‘while occupying’—‘any motor vehicle * * * which is not insured for * * * coverage

under [the policy],’ it could very easily have done so.”).

       Accordingly, our resolution of this dispute may proceed no further. The question of

which impact caused the decedent’s fatal injuries, and the time or distance between them, are

questions of fact for the jury. Therefore, because the record evinces a genuine issue of material

fact, the granting of summary judgment in favor of the defendant was erroneous. See Canavan v.

Lovett, Schefrin and Harnett, 862 A.2d 778, 783 (R.I. 2004) (“[I]f the record evinces a genuine

issue of material fact, summary judgment is improper and we will accordingly reverse.” (citing

Belanger v. Silva, 114 R.I. 266, 267-68, 331 A.2d 403, 405 (1975))).

                                            Conclusion

       For the reasons stated herein, we sustain the plaintiff’s appeal and vacate the summary

judgment entered in favor of the defendant. The record shall be remanded to the Superior Court

for proceedings in accordance with this opinion.



       Robinson, J., concurring in part and dissenting in part.           I do not substantively

disagree with the legal discussion in the majority’s opinion; we part ways only as to the

majority’s ultimate determination that genuine issues of material fact remain in the case due to

the fact that, according to the majority, under some set of facts, Mr. Esposito could be said to



                                               - 12 -
have been “getting off” his motorcycle. The majority identifies the following as being disputed

facts which it deems to be material: (1) “[t]he question of which impact caused the decedent’s

fatal injuries;” and (2) “the time or distance between [the impacts].” In explanation of its

conclusion relative to the issues of material fact, the majority states the following:

               “Given [the definition of occupying in the insurance
               contract,] * * * if decedent died from the resulting impact with the
               roadway after the first collision with the trash barrel, or in such a
               circumstance that the second impact was so close in time and
               proximity as to be considered simultaneous, it could be
               found * * * that he was occupying his motorcycle at the time he
               was fatally injured. In that case * * * decedent was indeed ‘getting
               off’ his motorcycle at the time of the fatal injury.”

While I readily acknowledge that there are facts in dispute in this case, it is my opinion that those

disputed facts are not material. It is my view that, regardless of which impact was fatal or how

close in time the impacts took place, the decedent was not occupying his motorcycle at the time

when he sustained the “bodily injury” that is referenced in the exclusion from the UM coverage

provision in the Quincy Mutual policy. I am simply unable to perceive any other interpretation

of the straightforward and unambiguous definition of “occupying” that is set forth in the

insurance contract at issue. That definition reads as follows: “‘Occupying’ means in, upon,

getting in, on, out or off.” While I intend absolutely no disrespect for the views of those who

read the quoted language differently, it is very clear to me, as a matter of plain English, that the

decedent, Anthony Esposito, cannot be said to have been “in, upon, getting in, on, out or off” his

motorcycle when he sustained the bodily injuries that are referenced in the record.

       I am especially unable to agree with any suggestion that Mr. Esposito was somehow

“getting * * * off” his motorcycle at the time when he sustained a bodily injury. I find it to be

highly unusual as a matter of English usage to understand the verbal expression “getting off” as

being descriptive of a completely involuntary event such as being thrown from a motorcycle as

                                                - 13 -
the result of a violent collision. If I stand up from the chair in my office in order to go to lunch,

one can rightly describe me as “getting off” that chair. However, if a miscreant were to, by brute

strength, gradually force me out of my chair onto the floor, I do not think that most speakers of

English would say that I was in the process of getting out of my chair. Perhaps once I was on the

floor, one could say, however infelicitously, that I had been gotten out of my chair. But the

active verbal form “getting off” would not, in my view, accurately describe what had transpired.

The verbal expression “getting off” as applied to a person leaving a place where he or she has,

up to that moment been seated or otherwise located, connotes active and volitional activity—

especially in the context of leaving one place to go elsewhere.1 It does not, to my mind,

properly describe what is happening when a person is involuntarily displaced from the position

that he had been occupying.2

       For these reasons, I concur with the majority’s ultimate determination to vacate the

judgment of the Superior Court, but I am respectfully unable to concur with the entirety of the

reasoning which led it to that determination.




1
        I cannot help recalling in this context the aphorism usually attributed to President
Truman: “If you can’t stand the heat, get out of the kitchen.” See John Bartlett, Familiar
Quotations 788 (Emily Morison Beck ed., 15th ed. 1980). The verb “get” in that aphorism
certainly implies active and volitional activity.
2
       Furthermore, even if a diligent search should disclose a quotation from some respectable
source using the “getting off” expression in the manner accepted by the majority, such a
quotation would surely be an outlier. And I would then fall back on the venerable “contra
proferentem” rule in construing the definition that is set forth in the Quincy Mutual policy of
insurance. See Rhode Island Hospital Trust National Bank v. McKee Brothers Oil Corp., 649
A.2d 511, 511 (R.I. 1994) (mem.) (explaining the rule of contra proferentem as meaning that
“agreements are to be construed against the drafting party”).
                                                - 14 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Jeanne Jackson, Executrix of the Estate of Anthony J.
                                     Esposito, Jr. et al. v. Quincy Mutual Fire Insurance
Title of Case
                                     Company et al.

                                     No. 2016-19-Appeal.
Case Number
                                     (PC 12-1793)
Date Opinion Filed                   May 5, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Richard A. Licht
                                     For Plaintiff:

                                     Edward John Mulligan, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Richard A. van Tienhoven, Esq.




SU-CMS-02A (revised June 2016)
