Danger Invites Rescue Doctrine Applied to Reverse Stay of SUM Arbitration

SUM  – USE OR OPERATION – DANGER INVITES RESCUE DOCTRINE
Matter of Encompass Indem. Co. v. Rich
(2nd Dept., decided 8/5/2015)

A firefighter injures his right shoulder while using the "jaws of life" to extricate the trapped driver of a vehicle that had crashed into a utility pole while speeding.

Question:  Is that injury compensable under the firefighter's personal auto policy's supplementary uninsured motorists (SUM) or underinsured motorists coverage?

Answer:  if there is proof that the negligent use of the underinsured motor vehicle causes an accident that led to the driver being trapped and in obvious need of medical attention, which, in turn, led to the insured's intervention and resulting injuries, then yes, SUM coverage is applicable.

New York SUM endorsements provide coverage only when the injuries are "caused by an accident arising out of such underinsured motor vehicle's ownership, maintenance or use[.]"  11 NYCRR 60-2.3(f).

In REVERSING the Supreme Court's order which had granted Encompass' application for a permanent stay of the respondent's SUM arbitration, the Appellate Division, Second Department, held:

Rich invoked the doctrine of "danger invites rescue" to establish that Goodman's negligent use of the underinsured vehicle proximately caused his injuries. That doctrine imposes liability upon a party who, "by his [or her] culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his [or her] aid" (Provenzo v Sam, 23 NY2d 256, 260; see Wagner v International Ry. Co., 232 NY 176, 180;Flederbach v Lennett, 65 AD3d 1011, 1012). The doctrine also applies "where the culpable party has placed himself [or herself] in a perilous position which invites rescue" (Provenzo v Sam, 23 NY2d at 260 [emphasis omitted]; see Finnocchiaro v Napolitano, 52 AD3d 463, 465). "In order for the doctrine to apply, the rescuer must have had a reasonable belief that the person being rescued was in peril" (Kesick v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 1221; see Provenzo v Sam, 23 NY2d at 260-261; Tassone v Johannemann, 232 AD2d 627, 628).

Here, Encompass failed to establish that Rich was not entitled to coverage under the SUM endorsement. The evidence in the record establishes that Goodman's negligent use of his vehicle directly caused the accident that led to him being trapped and in obvious need of medical attention, which, in turn, led to Rich's intervention and resulting injuries (see Kesick v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 1221-1222). It cannot be said, as a matter of law, that Goodman's negligent use of his vehicle was not a proximate cause of Rich's injuries under the doctrine of danger invites rescue. Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration.

The court also held that Encompass was not entitled to a temporary stay of the SUM arbitration to conduct pre-arbitration discovery because it "had ample time to seek discovery before commencing this proceeding and unjustifiably failed to do so (see Matter of Progressive N. Ins. Co. v Foss, 96 AD3d 855; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 714; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623)."