Key Takeaway
NY court finds excavator on public highway meets "use and operation" standard for no-fault coverage, even when temporarily parked and unattended during construction work.
Lazzari v Qualcon Constr., LLC, 2018 NY Slip Op 04082 (1st Dept. 2018)
I am a use and operation fan. It is the one issue that any practitioner who is involved in this area of law always has to question. The gray areas are huge. This case – probably a fact pattern few who practice on this field will deal with – just another example.
And what makes this even more remarkable is that Plaintiff will want use and operation not to be found for all purposes in this case because he would have “use and operation” for his own vehicle and will collect no-fault benefits regardless of the outcome in this matter. The usual fact pattern involves a pedestrian who makes contract with a vehicle or an occurrence that is proximately caused by the vehicle.
“Initially, we agree with defendants that the serious injury threshold applies because the action is between “covered persons” (Insurance Law §§ 5104, 5102). Defendants’ excavator does not fall under the “self-propelled caterpillar or crawler-type equipment while being operated on the contract site” exclusion to the term “motor vehicle” (Vehicle and Traffic Law § 311). While it is a “self-propelled caterpillar or crawler-type equipment” (see Masotto v City of New York, 38 Misc 3d 1226 n 5 ), it was being operated on a “public highway,” adjacent to and encroaching into the road on which plaintiff was driving (see Vehicle and Traffic Law §§ 125, 134). In addition, the accident arose out of the “use or operation” of the excavator, as the excavator was the “instrumentality” that produced plaintiff’s injuries (see Cividanes v City of New York, 95 AD3d 1 , affd 20 NY3d 925 ; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 ). The fact that it was not being operated and was unattended at the time of the accident does not preclude application of the statute, as it was only temporarily parked during ongoing construction work (see Trentini v Metropolitan Prop. & Cas. Ins. Co., 2 AD3d 957 , lv dismissed 2 NY3d 823 ; cf. Wooster v Soriano, 167 AD2d 233 ).”
Related Articles
- Whether the SUM endorsement should be read differently than the no-fault endorsement
- How use, operation and proximate cause are liberally construed to afford coverage
- When directing traffic after parking doesn’t constitute use or operation
- Vehicle occupation while rearranging items from outside the vehicle
- Coverage issues when a knee buckles while exiting a vehicle
Legal Update (February 2026): Since this post’s publication in 2018, there may have been amendments to Vehicle and Traffic Law § 311’s motor vehicle definition or updates to Insurance Law § 5102’s “covered person” provisions that could affect use and operation determinations. Practitioners should verify current statutory language and recent appellate decisions interpreting the exclusions for self-propelled equipment and their application to construction site incidents.
