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).
