Use and occupation

This case is interesting.  It was always understood that when someone exited their vehicle for a limited purpose and another vehicle hit that person, first-party coverage should be provided by the carrier of their own vehicle.

But there was also a belief that the person who exited the said vehicle was also a pedestrian and the insurance carrier of the vehicle that hit said person would also be liable for first-party benefits.  Nakhla tells us otherwise.  This is a must read for when you get the inevitable use and operation question.

Matter of Government Empls. Ins. Co. v Nakhla, 2016 NY Slip Op 04219 (2d Dept. 2016)

(1) “ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, those branches of the petition which were to join PSK Hacking Corp., EKAM Transportation, and American Transit Insurance Company as additional respondents to the proceeding and to temporarily stay arbitration pending a hearing on the relative liability of the petitioner and American Transit Insurance Company are granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.”

(2) “On July 17, 2012, Peter Nakhla was driving a taxicab owned by PSK Hacking Corp., registered to EKAM Transportation, and insured by American Transit Insurance Company (hereinafter American Transit). Nakhla was stopped at an intersection when another vehicle struck the taxicab in the rear. When Nakhla exited the taxicab to look for damage to the taxicab, the offending vehicle drove away and collided with Nakhla, who was now outside the taxicab. The offending vehicle left the scene and is unidentified.”

(3) “Although Nakhla’s personal vehicle was not involved in the accident, Nakhla qualified for SUM coverage under the GEICO policy insuring his personal vehicle under the provision which provides coverage for the named insured. However, the priority of coverage provision in GEICO’s policy provided that the uninsured motorist or SUM coverage, if any, under the policy insuring the vehicle occupied by him was to be applied first, and prohibited the stacking of policies.”

(4) “Thus, the crucial issue of fact in this case is whether Nakhla occupied his taxicab at the time of the second impact and, therefore, whether the policy limits of American Transit, which insured the taxicab, should be applied first. GEICO’s policy defines “occupying” as “in, upon, entering into, or exiting from a motor vehicle”—a definition taken from Insurance Law § 3420(f)(3), which defines occupying as “in or upon or entering into or alighting from” a vehicle. The question is whether “a departure from a vehicle is occasioned by or is incident to some temporary interruption in the journey and the occupant remains in the immediate vicinity of the vehicle and, upon completion of the objective occasioned by the brief interruption, he intends to resume his place in the vehicle” (Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 10-11). Here, GEICO established that Nakhla was an occupant of the taxicab at the time of the second impact through the submission of Nakhla’s examination under oath testimony, which indicated that he alighted from the taxicab after the first impact to determine whether it had been damaged




Use and operation

Complete Med. Care Svcs of NY, P.C. v N.Y.C. Tr. Auth., 2015 NY Slip Op 25236 (App. Term 2d Dept. 2015)

This proved to be the most interesting of the cases that I saw.

(1) “In support of the motion, defendant proffered a transcript of a hearing held pursuant to General Municipal Law § 50-h, at which the assignor testified that, as she was alighting from the rear exit of defendant’s bus in Queens, she stepped into a hole in the street with her left foot and fell. The assignor further testified that, since the incident occurred after dark, she did not see the hole before stepping into it.”

(2) “The Court held that the ” use or operation’ of the bus was neither a proximate cause’ nor an instrumentality’ that produced plaintiff’s injury” (id. at 926) “because plaintiff’s injury did not arise out of the use or operation’ of a motor vehicle (Insurance Law § 5104 [a]” (id.). Although the Court of Appeals in Cividanes interpreted the phrase “use or operation” in the context of Insurance Law § 5104, it relied upon the case of Walton v Lumbermens Mut. Cas. Co. (88 NY2d 211, 213 [1996]), in which the Court had interpreted the expression “use or operation” of a motor vehicle in a case [*2]seeking first-party no-fault benefits under Insurance Law § 5103 (a) (1), as is the case here. In Walton, the Court stated that “first-party benefits are available only if the injury sustained arose out of the use or operation of the motor vehicle” (id. at 215), and that, while Insurance Law § 5103 does not define “use or operation,” “no-fault benefits are unavailable when a party is injured by an instrumentality other than the vehicle itself” (id.). That is, “[t]he vehicle must be the proximate cause of the injury” (id.). ”

(3) “Here, where Insurance Law § 5103 is also the applicable statute, defendant demonstrated that the assignor’s injuries were produced by her act of stepping off the bus into a hole in the street.”

On the motorcycle and hit again – Is there coverage?

Boyson v. Kwasowsky, 2015 N.Y. Slip Op. 03964 (4th Dept. 2015)

Facts: Woman (a passenger) is dropped from motorcycle.  Vehicle that motorcycle avoided from hitting collided with the motorcycle, and the motorcycle went into the woman.  Woman sought no-fault benefits from vehicle that collided into motorcycle.
Question: Did this no-fault carrier (Kemper and Farm Family) have to provide coverage?
Answer: No.
(1) Case law in New York does not address the question whether a person in plaintiff’s position, who sustains injury after being thrown from a motorcycle, nevertheless continues “occupying” the motorcycle, and authority from other jurisdictions on that question is divided. Courts in other jurisdictions have held that the injured person continued to occupy the motorcycle for no-fault insurance purposes after being thrown from it.    Other courts have held that the injured motorcycle operator or passenger ceased occupying the motorcycle after being thrown from it.

(2) Here, however, plaintiff was injured by an impact with the motorcycle she was occupying, immediately following her accidental ejection from it. Her ejection, moreover, was the result of Boyson’s attempt to avoid a collision with the very pickup truck that propelled the motorcycle in plaintiff’s direction. Given those circumstances, we conclude that there was a single accident and that plaintiff was continuously “occupying” the motorcycle within the meaning of the exclusions of the Kemper and Farm and Family insurance policies. Although plaintiff was briefly separated from the motorcycle during the incident, she remained “vehicle oriented.” Her separation from the motorcycle did not transform her status from an occupant of the motorcycle to a pedestrian during the brief interval between striking the ground and being struck by the motorcycle.

(3) We therefore agree with the court that plaintiff is not entitled to first-party no-fault insurance benefits under the Kemper and Farm and Family insurance policies

The buckling knee when exiting

 Gonzalez v American Commerce Ins. Co., 2015 NY Slip Op 00494 (2d Dept. 2015)

“Section 5103 of the Insurance Law, part of the “Comprehensive Motor Vehicle Insurance Reparations Act,” which pertains to the entitlement to first-party benefits, provides, in relevant part, that a person is entitled to first-party benefits from the insurer of a vehicle “for loss arising out of the use or operation . . . of such motor vehicle” (Insurance Law § 5103[a][1]). Where a plaintiff’s injuries from an accident were produced other than as a result of the use or operation of the vehicle itself, no-fault first-party benefits are not available (see Cividanes v City of New York, 20 NY3d 925, 926; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214). “Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use” (Walton [*2]v Lumbermens Mut. Cas. Co., 88 NY2d at 215).

Here, the plaintiff failed to establish her prima facie entitlement to judgment on the complaint as a matter of law (see id. at 216; see also Cividanes v City of New York, 20 NY3d at 926). The plaintiff testified at her examination under oath, the transcript of which she submitted in support of her motion, that she simply fell while exiting the subject vehicle and that her knee “gave way.” Moreover, the plaintiff’s affidavit similarly indicated that she just fell without attributing her accident to the use or operation of the subject vehicle.

The defendant, however, established, prima facie, that the plaintiff’s alleged injuries did not arise from the use or operation of a vehicle (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 216; Hammond v GMAC Ins. Group, 56 AD3d 882, 883; Santo v Government Empls. Ins. Co., 31 AD3d 525, 526; Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890; see also Cividanes v City of New York, 20 NY3d at 926). In support of its cross motion, in addition to the transcript of the plaintiff’s examination under oath, the defendant submitted the plaintiff’s application for no-fault benefits and her signed statement concerning the circumstances of the accident, in which she consistently described the accident as occurring when her right knee “buckled” while she was getting out of the car, causing her to fall to the ground. In opposition, the plaintiff failed to raise a triable issue of fact.”

So assuming that there was a premises liability claim, there would not be a threshold issue since no fault benefits were not paid.



Use, Operation and proximate cause liberally construed to afford coverage

Kesick v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 03366 (3d Dept. 2013)

“In June 2007, plaintiff — a State Trooper, licensed registered nurse and paramedic — responded to a 911 call for assistance following a two-vehicle accident that occurred when Joseph Prindle’s vehicle struck Ralph Williams’ vehicle from behind, causing Williams’ vehicle to flip over. Upon plaintiff’s arrival at the scene of the accident, Williams was trapped inside his vehicle and complained of pain in his chest, hip and neck. Once the fire department arrived and removed the roof of the vehicle with the Jaws of Life, plaintiff entered the vehicle and stabilized Williams’ neck. While he and two other individuals were lifting Williams out of the vehicle, plaintiff injured his right shoulder.”

…Now the Courts tells us that (1) There was an accident; (2) The accident occurred while the vehicle was being used and occupied; and (3) The use of the vehicle wast he proximate cause of plaintiff’s injury. Thus, there is SUM coverage.  The issue of PIP coverage was never raised since Plaintiff collected Workers Compensation Benefits; but, the analysis should be no different.

Here is the rest of the decision:


Plaintiff invokes the doctrine of danger invites rescue to establish the requisite causal connection between the motor vehicle accident and his injuries. The “danger invites rescue” doctrine imposes liability upon a defendant who, “by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid” (Provenzo v Sam, 23 NY2d 256, 260 [1968]; see Wagner v International Ry. Co., 232 NY 176, 180 [1921]; Gifford v Haller, 273 AD2d 751, 752 [2000]). In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril (see Provenzo v Sam, 23 NY2d at 261; Carney v Buyea, 271 App Div 338, 342 [1946]). The reasonableness of a decision to intervene is generally a question for the factfinder (see O’Connor v Syracuse Univ., 66 AD3d 1187, 1191 [2009], lv dismissed 14 NY3d 766 [2010]; Gifford v Haller, 273 AD2d at 752; see also Hughes v Murnane Bldg. Contrs., Inc., 89 AD3d 1507, 1508 [2011]).

In the instant matter, plaintiff’s claims that Williams was injured as a result of the accident caused by Prindle’s negligent operation of his vehicle and that plaintiff was injured in the process of rescuing him are uncontroverted. Plaintiff’s affidavit established that he was directed to respond to the accident and was the first responder on the scene with medical training. When plaintiff spoke to Williams, he complained of extreme pain in his hip, chest and neck. Based upon his medical training, plaintiff knew the importance of stabilizing Williams’ neck to prevent further injury. Viewing this evidence in a light most favorable to plaintiff, we cannot conclude, as a matter of law, that his belief that Williams was in peril was unreasonable (see Villoch v Lindgren, 269 AD2d 271, 273 [2000]).

Moreover, if the facts here warrant application of the danger invites rescue doctrine, plaintiff’s injuries were not so remote in either time or space to the use of Prindle’s automobile as [*3]to preclude a finding of proximate cause as a matter of law. There is no dispute that Prindle’s negligent use of his vehicle directly caused the accident that led to Williams’ injuries which, in turn, led to plaintiff’s intervention. Considering the open question of the applicability of the danger invites rescue doctrine and liberally construing the provisions of the SUM policy in plaintiff’s favor, Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint (see Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d at 741; compare Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 597).

MVAIC failed to disprove that the accident was the cause of the injuries

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50578(U)(App. Term 2d Dept. 2012)

“MVAIC contends that there is an issue of fact as to whether plaintiff’s assignor’s injuries were the result of a motor vehicle accident. MVAIC’s sole proof in support of its contention consisted of an uncertified copy of a police report, which merely recorded a hearsay statement. Contrary to MVAIC’s contention, this showing was insufficient to demonstrate the existence of a triable issue of fact…(cf. Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 [1979]).”

The first sentence from the above passage, along with the cite to Gohlson, leads me to believe that the hearsay statement consisted of a witness saying that the motor vehicle was not the proximate cause of the injuries, taking this case out of the realm of no-fault.  Since this hearsay statement was not (1) an admission, (2) a police officer’s observation, or (3) pedigree information that the police officer took , the record needed to be certified in order to contain admissible evidence, sufficient to withstand a summary judgment motion.

This was not done, and another loss scored against MVAIC

Five Boro Psychological Servs., P.C. v MVAIC

Use and Operation

Cividanes v City of New York, 2012 NY Slip Op 02179 (1st Dept. 2012)


“This dispute arises from an accident that occurred on the morning of May 28, 2008. Plaintiff was allegedly injured as she exited a bus owned and operated by defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants). Plaintiff testified at a General Municipal Law § 50-h hearing that as she exited the rear of the bus, she “stepped off the last step into a hole and fell.” She stated that the bus did not pull completely into the bus stop; she was let out “in front of the bus stop.” The bus continued on its route. She described the hole into which she stepped and fell as being “pretty far away from the curb;” while the front of the bus “pulled about a foot away from the curb,” the “back of the bus was on an angle, so it was further away from the curb.”


“Although is unclear what the Court meant when it stated that the plaintiff was not completely outside of the bus when the accident occurred, to the extent the decision in Manuel reaches a contrary conclusion under seemingly similar circumstances to this case, we decline to follow it as inconsistent with Walton. In Manuel, the Court seems to be conflating negligence during the use of a vehicle with the additional requirement of the No-Fault Law that the vehicle itself be the proximate cause of the victims’s injuries. The terms, however, are not synonymous. Indeed, in Argentina v Emery World Wide Delivery Corp. (93 NY2d 554 [1999]), the Court of Appeals highlighted the differences, in distinguishing Vehicle and Traffic Law § 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive “use or operation” of their vehicles, with the No-Fault Law. In Argentina, the Court held that under Vehicle and Traffic Law § 388(1) the vehicle need not be the proximate cause of the victim’s injury before the vehicle’s owner may be held liable, thereby distinguishing Walton, which requires that the vehicle be the proximate cause of the victim’s injuries to trigger the No-Fault Law.”


“In Manuel, however, the Second Department considered the bus driver’s positioning of the bus next to a hole in the street, when he pulled over at the bus stop, to be a sufficient predicate to trigger the No-Fault Insurance Law. Of course, that conduct would be sufficient to trigger section 388(1), which imposes liability on all vehicle owners for accidents resulting from negligence in the permissive use of their vehicles. But under Walton, this is not sufficient to trigger the No-Fault Law, which contains the additional requirement that the vehicle be the proximate cause of the injury (cf. Travelers Property Cas. Co. v Landau, 27 AD3d at 477-478); Matter of New York Cent. Mut. Fire Ins. Co. (Hayden), supra, 209 AD2d 929). We thus hold, [*8]that liability for the injuries sustained from a fall in a hole after alighting from a bus are more properly addressed outside the area of the No-Fault Law”

Use and Operation – Should the SUM endorsement be read differently than the no-fault endorsement?

Use and Operation.  This is one area of law that is all over the place.  Practitioners that are called upon to give opinions on whether coverage is implicated through a vehicle’s use and operation, and whether coverage should be shared between numerous carrier, should usually walk on egg shells.  This is a difficult area of law, and it changes every day, and this case is a doozy.

I am going to pretty much cut and paste this decision and the dissent – something I try to avoid.  In my years of practice, I have never seen a court explicitly hold that use and operation should have a different interpretation under the SUM endorsement as opposed to the PIP endorsement.  If someone could give me a bright line rule on this coverage issue, please share.  Please do not cite Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD 1004 (2d Dept. 1979).

Also, this may end up at the court of appeals.  It really should actually.  And now………..

Matter of Liberty Mut. Fire Ins. Co. v Malatino, 2010 NY Slip Op 06204 (3d Dept. 2010)

“While respondent Marcia Malatino (hereinafter respondent) was returning to work after taking a break in the employer’s parking lot, she walked into a piece of sheet metal extending approximately five feet beyond the tailgate of a coworker’s parked pickup truck,[FN1] sustaining facial lacerations and a broken nose. According to the record, the coworker had torn the sheet metal off a building on his property and planned to deliver it to a junkyard after work.”

“Initially, we note that the issue herein involves the right to arbitration under the specific terms of the parties’ supplemental underinsured motorists policy and not the application of any statutory no-fault provisions [FN2]. A court may grant an application to stay arbitration “where ‘the particular claim sought to be arbitrated is outside [the] scope of the agreement to arbitrate'” (Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740, 741 [2003]

Clearly, the pickup truck was not being operated at the time of the accident — having been parked in the employer’s lot when the coworker arrived at work. The focus herein, however, is whether the vehicle was in use so as to fall within the scope of the terms of the supplemental underinsured motorists policy. Here, at the time of respondent’s injury, the pickup truck was being used by the coworker to transport the sheet metal to the junkyard after work. Construing the language of the supplemental underinsured motorists policy liberally “in favor of the insured and strictly against the insurer” (Penna v Federal Ins. Co., 28 AD3d at 731), and given the causal connection between the use of the pickup truck to transport the sheet metal and respondent’s injuries, we find that respondent’s request for arbitration falls within the scope of the parties’ agreement….


“While “use” of a motor vehicle encompasses more than just driving and extends to other incidental activities (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]), there are limits to that term and the corresponding insurance coverage [FN4]. The majority holds that the truck here was being used to contain sheet metal until the coworker could transport it, rendering the vehicle in “use.” This broad finding places no parameters on the use of a vehicle. It is unclear if the majority considered that the truck was in use while containing the sheet metal only because the coworker intended to transport the sheet metal to the junkyard that same day, or if the truck would be considered in use as a vehicle if the sheet metal was placed there a year earlier and the coworker regularly parked his truck with metal protruding from his tailgate. Conversely, if the truck was never moved from the parking lot but was regularly utilized to store different materials in the same location, would the parked truck constantly be in use as a vehicle? Rather than [*4]expanding the application of the statute and regulation requiring coverage for injuries arising out of a “motor vehicle’s ownership, maintenance or use” (11 NYCRR 60-2.3 [f] [II]; see Insurance Law § 3420 [f] [1]), we should adhere to the current rule that looks to whether the “circumstances constituted an ‘on-going activity relating to the vehicle’ which would necessitate a conclusion that the vehicle was in use” (Trentini v Metropolitan Prop. & Cas. Ins. Co., 2 AD3d 957, 958 [2003], lv dismissed 2 NY3d 823 [2004], quoting Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635, 636 [1981]; see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599-600 [2006]); Wooster v Soriano, 167 AD2d at 234).

In Sullivan v Barry Scott Agency, Inc. (23 AD3d 889 [2005]), this Court held that a plaintiff’s back injury caused by lifting a heavy box was not related to the use of a motor vehicle, even though he was standing in a delivery van when unloading the box. We found the proximity to the vehicle “wholly incidental,” “[a]s plaintiff’s injuries would have occurred even if he had been standing on the ground and lifting the box” (id. at 890; see Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889, 889 [1995]; United Servs. Auto. Assn. v Aetna Cas. & Sur. Co., 75 AD2d 1022, 1022 [1980]; cf. Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]). Similarly, respondent here would have received the same injuries had the sheet metal she walked into been protruding from any object other than a vehicle. Under the circumstances, there was no ongoing activity related to the parked truck — in its capacity as a motor vehicle, rather than as a storage bin for sheet metal — so as to necessitate a conclusion that the vehicle was in use when respondent was injured (see Sullivan v Barry Scott Agency, Inc., 23 AD3d at 890; Matter of New York Cent. Mut. Fire Ins. Co. [Hayden — Allstate Ins. Co.], 209 AD2d 927, 928 [1994] [staying arbitration where “accident did not arise out of the inherent nature of the automobile as such”]; Reisinger v Allstate Ins. Co., 58 AD2d 1028, 1028 [1977], affd 44 NY2d 881 [1978]; McConnell v Fireman’s Fund American Ins. Co., 49 AD2d at 677). Accordingly, petitioner was entitled to a stay of arbitration because its insurance policy does not provide coverage for respondent’s injuries.”

Occupation of a vehicle implicated through rearranging items inside vehicle while standing outside of it

Rosado v Hartford Fire Ins. Co., 2010 NY Slip Op 02119 (2d Dept. 2010)

“[An injured person was] standing with his feet on the pavement, reaching with his hands into a side bay of the delivery truck to rearrange empty cases of beer. When the box truck hit the plaintiff, it pushed him approximately 10 to 12 feet, pinning him between his delivery truck and the box truck, until he came to a stop against the first side bay of the truck on the driver’s side.”

“In accordance with the liberal interpretation afforded the term “occupying” (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639), we find, as a matter of law, that the injured plaintiff was “in” or “upon” the delivery truck at the time of the accident such that he was “occupying” the delivery truck within the meaning of the SUM endorsement”

Since the PIP case law seems to track the SUM case law as to use, occupation and operation, do we have an expansion of these terms of art?

A person who parks a truck on the side of the road, exits it and directs traffic is not using or operating the truck

Gallaher v Republic Franklin Ins. Co., 2010 NY Slip Op 01143 (4th Dept. 2010)

“we agree with defendant that the court erred in determining that there is an issue of fact whether plaintiff was covered under the policy as a person occupying the truck. At the time of the accident, plaintiff had exited the fire company’s truck and was directing traffic away from the scene of a motor vehicle accident. Plaintiff’s conduct in directing traffic was “unrelated to the [truck]” and was not incidental to his exiting it (Matter of Travelers Ins. Co. [Youdas], 13 AD3d 1044, 1045). Thus, under the facts of this case, plaintiff was not “occupying” the truck within the meaning of that term in the policy”

Use and operation issues are usually fact sensitive and can go either way many times.  In this case, the tipping point was that Plaintuff’s actions were not incidental to his use of the vehicle.  This fact patter is similar to Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 A.D.3d 633 (2d Dept. 2008).  But See, Mazzarella v. Paolangeli, 63 A.D.3d 1420 (3d Dept. 2009).