Framed-Issue Hearing Ordered on Whether SUM Claimant's Injuries Arose from a Motor Vehicle Accident and While Claimant Was Occupying His Vehicle

AUTO – SUM – ACCIDENT – OCCUPYING – EVIDENCE SUFFICIENT TO WARRANT FRAMED-ISSUE HEARING
Matter of American Protection Ins. Co. v. DeFalco
(2nd Dept., decided 4/28/2009)

Claimant, a Suffolk County police officer, was injured while placing a motorist under arrest.  He settled his personal injury claim against the motorist and made this SUM claim under his own personal auto policy to American Protection, which commenced this special proceeding to stay the arbitration of that SUM claim and sought a framed hearing on whether claimant's injuries arose from: (1) an accident; (2) the "use and operation" of the underinsured motor vehicle; and (3) while claimant was "occupying" his patrol car.

Although he claimed in an affidavit that his injuries occurred when he was exiting his vehicle as it was struck by the motorist's vehicle, this description contrasted with claimant's prior statement, recorded in a "Suffolk County Police Department Injured Employee Report," in which he stated that he was injured "while attempting to subdue and place a violently struggling suspect under arrest."

In REVERSING the motion court's denial of American Protection's petition and remitting that matter back to Nassau Supreme for a framed-issue hearing, the Second Department held:

SUM benefits are not recoverable if the injuries were intentionally caused and not the result of an accident (see State Farm Mut. Auto. Ins. Co. v Langan, 55 AD3d 281; Met Life Auto & Home v Kalendarev, 54 AD3d 830; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610, 611). It is also clear that DeFalco would not be entitled to SUM benefits under the American policy if he was not "occupying" a vehicle when he was injured. Thus, the occurrence of an accident and the "occupation" of a vehicle are conditions precedent to SUM coverage herein.

"The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay" (Matter of Liberty Mut. Ins. Co. v Morgan, 11 AD3d 615, 616; see Matter of Eagle Ins. Co. v Viera, 236 AD2d 612). Here, American submitted documentary evidence which indicated that DeFalco's injuries did not arise from the "use or operation" of a vehicle. Although DeFalco submitted an affidavit in opposition to the petition, wherein he claimed that his injuries occurred when he was exiting his vehicle as it was struck by the Bell vehicle, this description contrasted with his prior statement, recorded in a "Suffolk County Police Department Injured Employee Report," in which he stated that he was injured "while attempting to subdue and place a violently struggling suspect [Bell] under arrest." At the very least, the two explanations of how DeFalco incurred his injuries raise a question as to his credibility, and thus a framed-issue hearing on the issue of coverage is warranted (see Matter of Eagle Ins. Co. v Lucia, 33 AD3d 552; Matter of Travelers Prop. Cas. Co. v Landau, 27 AD3d 477).

Similarly, American submitted documentary evidence which indicated that the collision could have been the result of an intentional act on Bell's part. Although this same evidence may be consistent with a conclusion that the collision was accidental, under all of the circumstances presented, American met its burden of tendering evidence sufficient to warrant a framed-issue hearing with respect to this issue as well (see Matter of Country-Wide Ins. Co. [Law], 97 AD2d 699).