Opening a Taxicab Door Is Not "Operating" the Taxicab -- Liability Coverage to Passenger Who Opened Door into Path of Bicyclist Denied

COMMERCIAL AUTO – LIABILITY COVERAGE – WHAT CONSTITUTES "OPERATING" A VEHICLE
Kohl v. American Tr. Ins. Co.
(Ct. Apps., decided 7/1/2010)

In Henderson v. New York Cent. Mut. Fire Ins. Co., 56 AD3d 1141, the Fourth Department ruled that negligently opening a car door constituted an "automobile accident" and stated that "the 'act of opening the [vehicle] door in order to exit the vehicle constitutes "use and operation" of a vehicle pursuant to Vehicle and Traffic Law § 388[.]'" 

In this case, plaintiff commenced this action for a judgment declaring that the American Transit was obligated to defend and indemnify him in an personal injury action brought by a bicyclist who was injured when the plaintiff opened the rear door of a taxicab he was exiting into the bicyclist's path.  Affirming the Supreme Court's order granting American Transit's cross motion for summary judgment, the Second Department stated that "[t]he Supreme Court properly granted the defendant's cross motion for summary judgment since the plaintiff is not entitled to a defense or to indemnity for his 'use' of a vehicle under the defendant's commercial automobile policy insuring the owner and the driver of the taxi-cab[.]"

Plaintiff obtained leave to appeal the Second Department's decision to the Court of Appeals, and that court recently AFFIRMED the award for summary judgment to American Transit, succinctly holding:

The Appellate Division correctly held that Kohl was not insured under the taxi owner's policy of automobile liability insurance. The policy says that it "shall inure to the benefit of any person legally operating" the insured vehicle in the business of the insured. The word "operating" cannot be stretched to include a passenger's riding in the car or opening the door. 

Is there a legal difference between "operation" as used in the term "use and operation" and "operating", as used in the more limited insuring language of American Transit's taxicab policy?  Apparently there is, with both the Second Department's and Court of Appeals' decisions in this case having succeeded (but not mentioned) the Fourth Department's decision in Henderson.