Get In, Get Out, Move the Empties About, Yo-Ho, Yo-Ho, Yo-Ho

SUM – "OCCUPYING" – "UPON" – BEING "VEHICLE-ORIENTED"
Rosado v. Hartford Fire Ins. Co.
(Sup. Ct., Kings Co., decided 8/18/2008)

Remember that great list of prepositions they taught in grammar school? Okay, maybe circa 60's-70's grammar school. When they still had prepositions. And grammar.

about	behind	from	on	toward
above	below	in	on top of	under
across	beneath	in front of	onto	underneath
after	beside	inside	out of	until
against	between	instead of	outside	up
along	by	into	over	upon
among	down	like	past	with
around	during	near	since	within
at	except	of	through	without
before	for	off	to

Mrs. Swillinger made us memorize that list. And Seton Poems. Anyone out there remember Seton Poems? I think that I shall never see, a poem as lovely as a tree. --Joyce Kilmer. We parochial schooled third-grade boys in Swilly's class liked reciting that one aloud in class not because we were budding arborists (pun intended), but because of last word in the fourth line. Heh.

In any event, back to our regularly scheduled program.

Jesus Rosado was hit and injured by a box truck while making beer deliveries for his employer. Countrywide paid the $25,000 policy limit for the box truck and Rosado made an SUM claim under his employer's auto policy with Hartford, which defined an "insured" to include "any other person occupying * * * a motor vehicle insured for SUM under this policy." The policy's SUM endorsement defined "occupying" as "in, upon, entering into, or exiting from a motor vehicle." Lots of prepositions.

In lieu of demanding arbitration, Rosado and his wife brought this action for SUM benefits. In his deposition, Rosado described the beer delivery truck and testified that, in the course of making deliveries in and out of establishments on the day of the accident, he was leaning his upper body slightly into one of the truck's 12 side bays to make room for empty beer cases that he had brought back to the truck on a handtruck when the box truck hit him, pushing him approximately 10-12 feet before pinning him against the side of his delivery truck.

Hartford moved for summary judgment dismiss the complaint based on its contention that Rosado was not "occupying" the insured delivery truck and, therefore, did not qualify as an "insured" for SUM coverage. Hartford argued that Rosado's momentary contact with the insured delivery truck for the purpose of depositing empty beer cases into one of its bays could not be construed as his being either “in, upon, entering into, or exiting from a motor vehicle” when the subject accident occurred. Rosado cross-moved for summary judgment and for a declaration deeming Hartford to have consented to the $25,000 settlement.

In denying summary judgment to both parties, Kings County Supreme Court Justice Larry Martin held that questions of fact existed with respect to whether Rosado was "occupying" the subject vehicle at the time of his accident:

In the seminal case construing the parameters of the term "occupying" as it is used in SUM endorsements, Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 11 [1973], the Court of Appeals held that “[t]he status of passenger is not lost even though he [or she] is not in physical contact with [the vehicle in question], 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.” In addition, the term "occupying" in this context "has long received a liberal interpretation" (Matter of Travelers Ins. Co. [Youdas], 13 AD3d 1044, 1045 [2004]; see also Rowell v Utica Mutual Ins. Co., 77 NY2d 636, 639 [1991][noting that “[t]he term [“occupying”] has received a liberal interpretation because of the expansive definition in the [controlling] statute [Insurance Law § 3420 (f)(3)] and in standard policy endorsements”]). However, it has been recognized that “[m]ore than a mere intent to occupy a vehicle is required to alter the status of pedestrian to one ‘occupying’ [the subject vehicle]; and this is particularly so where there has been no previous passenger-oriented status (Matter of Rice, 32 NY2d at 11).

* * * * *

[W]here the facts support an interpretation that a sufficient unbroken nexus existed at the time of the accident between the alleged occupant and the subject vehicle and the injured party remained ostensibly "vehicle-oriented" when said accident occurred, courts consistently have determined that the party could be construed as “occupying” the subject vehicle for purposes of SUM coverage[.]

* * * * *

In addition, although the majority of the case law cited to by the parties and relied upon by the court concerns instances where the question of occupation of the subject vehicle revolves around that portion of the definition of “occupying” which refers to the “entering into, or exiting” from the vehicle, the court notes that said definition also encompasses situations where the injured party could be said to be found “upon” the vehicle in question. There is a dearth of case law addressing this aspect of the definition. However, this court is bound to address the issue as it is required to interpret contracts, such as the one at bar, so as to give meaning to all of their terms[.]

In the instant case, the court finds that a triable issue of fact exists as to whether plaintiff was sufficiently “vehicle-oriented” at the time of his accident such that he could be construed to have been "upon" the vehicle when said accident occurred. * * * * * Given the liberal interpretation generally afforded to the term “occupying,” the drastic nature of the remedy of summary judgment and the requirement that this court view the evidence proffered in the light most favorable to the non-movant, the court cannot determine, as a matter of law, that plaintiff was not occupying the subject vehicle at the time of his accident. Rather, given his prior occupancy in the vehicle, his intent to return to same and his arguably vehicle-oriented activity in opening and shutting the truck bays and loading and unloading same at the time of his accident, operations which by their very nature could be deemed intrinsic to the operation of a delivery truck, the court finds that questions of fact exist with respect to plaintiff's so-called “occupant” status which constrains the court from granting summary judgment to either party.

The court also found that Insurance Law § 3420(d) did not apply because Hartford had not denied coverage based on an exclusion, but on Rosado's lack of inclusion or qualification as an "insured". The court also denied that part of plaintiffs' cross motion which sought an order deeming Hartford to have consented to their underlying settlement with Countrywide:

[T]he provision governing such settlements unequivocally refers to an “insured” under the subject SUM endorsement. As questions of fact currently exist as to whether the plaintiff should be afforded the status of an insured under the SUM endorsement and the subject settlement provision contained therein, it would be premature for this court to determine that said provision currently applies to the tender by the third party tortfeasor’s insurer of $25,000 in settlement of plaintiffs' personal injury claim or Hartford Co.’s consent, or lack thereof, to same.