iNews from Picciano & Scahill

We are frequently called upon to provide coverage opinions on a variety of claims. A September morning this month from a Claims manager sought advice on the following scenarios of interest and the applicability of first party coverage.

1. A driver in a moving vehicle has the misfortune of having a tree limb fall and pierce his roof impaling his leg (major ouch). Question -would PIP coverage apply?

See in Re Farm Family Casualty Ins. Co. (Trapani) 301 A.D.2d 740 (App. Div. Third Department, 2003). On September 5, 2000, Diana Talerico lost control of her car and struck a utility pole. The car's impact moved the pole, causing its power lines to short out and rain sparks and hot pieces of wire down onto the 75-year-old respondent, who was standing in her garden along the roadway near her home. In attempting to run from this hazard, respondent fell and sustained injuries to her head and left knee. After settling for the $25,000 policy limit with Talerico's insurer, respondent sought additional compensation under the supplemental underinsured motorist provisions of an insurance policy issued by Farm Family Casualty Ins. Co. The lower Court held the injuries did not arise out of the use and operation of a motor vehicle (standard for applicability of first party coverage). The Appellate Division, Third Department reversed holding, "Upon our review of the record, we find that the impact of Talerico's car with the utility pole was not a cause so remote in either time or space from respondent's injuries "as to preclude recovery as a matter of law" (McMorrow v Trimper, 149 AD2d 971, 972, aff'd 74 NY2d 830), and neither the shorting power lines nor respondent's flight were so extraordinary or unforeseeable that they should "be viewed as superseding acts which, as a matter of law, break the causal link." The Court held as a matter of law the vehicle involved was a proximate cause of the injuries claimed and coverage was therefore provided.

2. A driver is operating a van with a large rock in the vehicle. The insured stops the van and the rock rolls over his leg and he is injured. Question-would PIP coverage apply ?

See Hammond v GMAC Ins. Group, 56 AD3rd 882 (Third Department 2008). In Hammond the plaintiff was a passenger in a car driven by his friend and owned by plaintiff's mother. They stopped for gas and, while plaintiff was pumping gasoline, the gas pump nozzle popped out of the car's fuel tank, causing some gasoline to spill on the ground and, unbeknownst to him, on his clothing. Plaintiff then entered the gas station store to purchase a pack of cigarettes. Shortly after leaving the gas station in the vehicle, plaintiff attempted to light a cigarette, causing the gasoline on his clothing to ignite. As a result, he suffered severe burns to the right side of his body, right arm and leg. Perhaps the driver with the rock and the plaintiff in Hammond took the same driver safety course. GMAC denied plaintiff's claim for no-fault insurance benefits on the ground that his injuries did not arise out of the use or operation of a motor vehicle citing Insurance Law � 5102 [b]; � 5103 [a] [1]. The Appellate Court held, "No-fault insurance benefits are payable only if a person's injury "aris[es] out of the use or operation of a motor vehicle" (Insurance Law � 5102 [b]; see � 5103 [a] [1]). Inasmuch as "[t]he vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises" (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]), we agree with Supreme Court's conclusion that plaintiff's injuries-sustained when he attempted to light a cigarette, igniting gasoline that he had spilled on his clothing-did not arise out of the use of the vehicle. Indeed, plaintiff's injuries would have occurred even if he had never reentered the vehicle and his friend had driven away (see Sullivan v Barry Scott Agency, Inc., 23 AD3d 889, 890 [2005]; cf. Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740, 741-742 [2003]). Thus, although plaintiff's injuries occurred while he was inside the moving vehicle, because "the vehicle itself was not a cause of the damage," he is not entitled to no-fault benefits (Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 215; see Sullivan v Barry Scott Agency, Inc., 23 AD3d at 890, Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889 [1995]) " Here the Driver with his large rock and the Hammond plaintiff with his smoke should both be excluded from PIP coverage.

3. A EIP (Eligible Injured Person) is working on a vehicle raised by a jack. The jack gives way and crushes the EIP. Question -would PIP coverage apply?

Coverage would apply in this scenario. See Trentini v. Metropolitan Property and Casualty Insurance Company 2 A.D.3rd 957 (Third Department 2003); and Mazzarella v. Paolangeli 63 A.D. 1420 (Third Department 2009) for the proposition, that for puposes of PIP coverage, an accident or loss will be deemed to arise out of the use and operation of a vehicle when the vehicle is the proximate cause of the injury. In Trentini, Bruce Campbell, Jr. was driving a vehicle insured by Metropolitan. After the vehicle stalled and Campbell could not restart it, he pushed the vehicle down a hill to a safer spot, then he pushed it to the shoulder of the road against a snow bank, turned on its hazard flashers, locked the doors and walked home. Approximately 15 minutes later, he returned in another vehicle and attempted to jump start the disabled vehicle, unsuccessfully. Campbell then locked the vehicle again and went to a friend's home in order to get someone to tow the disabled vehicle. About 20 to 25 minutes later, as he was heading back to the vehicle, he was informed that two snowmobiles had collided with the disabled car. Plaintiff, who was operating one of those snowmobiles, was injured. After Metropolitan denied plaintiff's request for no-fault benefits, Trentini filed suit. The sole issue was whether the disabled vehicle was in "use or operation" at the time of the accident, thus permitting plaintiff to recover no-fault benefits pursuant to Insurance Law � 5103 (a) (1). After a bench trial, the lower Court found that the vehicle was in use and granted judgment to plaintiff. The Third Department on appeal held, the facts as presented "constituted an "on-going activity relating to the vehicle" which would necessitate a conclusion that the vehicle was in use (compare Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635 [1981]; Gering v Merchants Mut. Ins. Co., 75 AD2d 321, 323 [1980]). Because the vehicle he struck was in "use or operation" at the time of the accident, plaintiff is entitled to no-fault benefits."