Hammond v. GMAC Ins. Group
(3rd Dept., decided 11/6/2008)
Don't try this at home.
While pumping gas into his mom's car at a gas station, the gas pump nozzle popped out of the tank opening and allowed some gasoline to spill onto the ground and, unbeknownst to plaintiff, his clothing. Plaintiff then entered the station's store to purchase a pack of cigarettes. Shortly after leaving the gas station while riding as a passenger in the vehicle, plaintiff attempted to light a cigarette, causing the gasoline on his clothing to ignite, which in turn caused severe burns to the right side of plaintiff's body, right arm and leg.
GMAC denied no-fault coverage for plaintiff's injuries based on its conclusion that they did not arise out of the use or operation of a motor vehicle, as required by New York Insurance Law §§ 5102(b) and 5103(a)(1). Plaintiff commenced this action for no-fault benefits, and after discovery was complete, both parties moved for summary judgment.
In AFFIRMING the denial of plaintiff's motion and granting of GMAC's cross motion, the Third Department 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, 889 [1995]).In treating plaintiff's burns, maybe his doctors should also check his olfactory receptors.
3 comments:
I think the correct lawsuit should be against the gas station that sold the cigarettes to this poor individual. First of all, they should have smelled the gasoline on his pants and refused to sell him the smokes. Second, it's dangerous to sell cigarettes at a gasoline station.
And finally, Good Lord, if the Legislature can propose a change in the law to grant no-fault benefits to drunk drivers, can't they also include benefits for misfortunates like this one, upon whom Providence has thrust such a bitter cup?
Lighting up the cig was not use of the vehicle. The more compelling fact pattern-- if the dropping of the gas "gun" created a spark that ignited the gas on the cloths. Fueling the vehicle is necessary for the use of the vehicle. Thus, it appears the refueling process would be the operation of the vehicle.
My guess is that the assignor knew that he had spilled gas on himself, but never admitted this point.
I think that the subtle sarcasm in my first comment was lost on "anonymous."
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