Zurich insured TotalBank under a Commercial General Liability policy which provided med pay coverage, regardless of fault, for injuries which occurred "[o]n the ways next to premises you own or rent; or [b]ecause of your operations."  TotalBank rents a building in a shopping center located on Quail Roost Drive.  Between the parking lot of the shopping center and Quail Roost Drive there is a swale, a sidewalk and another swale.  Quail Roost Drive does not abut or touch the parking lot or TotalBank’s rented premises in the shopping center. 

On September 4, 2002, Ms. Ainsworth and her son were involved in an automobile accident in which her son sustained injuries when her car, while proceeding on Quail Roost Drive, collided with two other vehicles.  One of the cars involved in the accident was exiting the a driveway from a Burger King in the shopping center.  Ms. Ainsworth submitted a claim for med pay to Zurich.  Zurich denied the claim and the County Court as the trial court granted summary judgment in favor of Zurich.  The Circuit Court sitting in its appellate capacity reversed, finding that a genuine issue of material fact remains as to whether the landscaping or design of TotalBank caused the bank to be liable for the accident and whether the Quail Roost Drive location meets the med pay policy coverage provision of "ways next to premises" owned or rented by TotalBank. 

Initially, the appellate court pointed out that "[u]nder a general liability policy, med pay coverage is primarily intended to pay for injuries sustained by members of the general public while on the insured’s premises or otherwise exposed to the insured’s operations….  Coverage is typically limited by the activity surrounding the area where the accident occurred or to the location where the injury occurred or both." 

Then, the Court noted that the Circuit Court had improperly injected liability notions into its analysis of the med pay issue by questioning whether the landscaping or design of TotalBank contributed to the accident. 

Finally, the Court noted that "we find, as a matter of law, that the meaning of ‘ways next to premises’ does not afford coverage for this accident" given the fact that the accident occurred on a way which is not contiguous to or touching the insured premises. 

I don’t know how the plaintiff’s attorney thought to look at the med pay for TotalBank for possible coverage, but I’ve got to give it to him creativity!