No UM Coverage for Claimant Not "Occupying" Employer's 70-Foot Tractor Trailer

UM – HIT-AND-RUN – "OCCUPYING" – "VEHICLE-ORIENTED"
Faragon v. American Home Assur. Co.
(3rd Dept., decided 6/5/2008)

Plaintiff was injured in a hit-and-run accident while instructing a customer in the use of a 50-55 foot-long boom lift that he had off-loaded from his employer's 70-foot tractor trailer. American insured the tractor trailer, and Nationwide was the plaintiff's personal auto insurer. American denied UM coverage benefits to the plaintiff on the ground that he was not "occupying" the tractor trailer, as the commercial auto policy required, at the time of the accident. Nationwide contended that plaintiff was covered by American, and that its coverage was thus secondary.

American's policy provided UM coverage for individuals "occupying" a covered vehicle. The term "occupying" was further defined in American's policy consistent with 11 NYCRR 60-2.3(f) and Insurance Law § 3420(f)(3) to include "in, upon, entering into, or exiting from a motor vehicle."

Supreme Court found that plaintiff was occupying the tractor trailer at the time of the accident and granted UM coverage under American's policy. The Third Department REVERSED, holding:

Interpreting the term "occupying" has resulted in differing tests in various jurisdictions (citations omitted). However, in New York "the term has long received a liberal interpretation and, thus, 'the status of passenger is not lost even though [an individual] is not in physical contact with [the vehicle], provided there has been no severance of connection with it, his [or her] departure is brief and he [or she] is still vehicle-oriented with the same vehicle'" (citations omitted).

Here, plaintiff was off-loading a 44,000 pound, 50-to-55 foot-long boom lift from a 70-foot tractor-trailer. The procedure involved many steps, including setting out safety cones, unchaining the boom lift, folding out and inserting pins in the jib, inspecting the basket, lowering the trailer, backing the machine off the trailer, and securing and extending axle shifts. Plaintiff had completed these steps, which he testified at his deposition typically took 20 to 30 minutes. He further testified that, after removing and readying the boom lift, he next trains the person renting it on the proper operation of the equipment, a procedure he estimated to take 30 to 35 minutes. He recalled during his testimony that, in the current situation, he had been training the person who was going to operate the equipment for 10 to 15 minutes when the accident occurred. Although the tractor-trailer reportedly remained running during the entire time and plaintiff's affidavit sets forth a more condensed time frame than his deposition for his activities at the site, it is inescapable that he was no longer vehicle-oriented. His absence from the vehicle was not intended to be brief and, at the time of the accident, he was engaged in instructing the lessee about the operation of the delivered equipment. Under such circumstances, he was no longer "occupying" his employer's vehicle[.]

Judgment for American declaring that Nationwide, not American, owed UM coverage to plaintiff.