Encompass Indem. Co. v. Rich

• Decision Date: 05 August 2015
• Docket Number: 2013-02436
• Parties: In the Matter of ENCOMPASS INDEMNITY COMPANY, respondent, v. Kevin RICH, appellant.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 476
14 N.Y.S.3d 491
2015 N.Y. Slip Op. 06432

In the Matter of ENCOMPASS INDEMNITY COMPANY, respondent
v.
Kevin RICH, appellant.

2013-02436

Supreme Court, Appellate Division, Second Department, New York.

Aug. 5, 2015.

14 N.Y.S.3d 492

Barasch McGarry Salzman & Penson, New York, N.Y. (Dana Cutting of counsel), for appellant.

Feeney & Associates, PLLC, Hauppauge, N.Y. (Rosa M. Feeney of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Opinion

131 A.D.3d 476

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for underinsured motorist benefits, Kevin Rich appeals from a judgment of the Supreme Court, Nassau County (McCormack, J.), entered February 20, 2013, which, upon an order of the same court entered January 25, 2013, granting that branch of the petition which was to permanently stay arbitration, permanently stayed arbitration.

ORDERED that on the Court's own motion, the notice of appeal from the order is deemed a premature notice of appeal from the judgment (see CPLR 5520[c] ); and it is further,

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, the proceeding is dismissed, and the order is modified accordingly.

On January 11, 2010, Kenneth Goodman was driving his vehicle on Francis Lewis Boulevard in Queens and speeding when he lost control of his vehicle and crashed it into a utility pole. When firefighter Kevin Rich's engine company responded to the scene of the accident, Goodman was trapped inside his vehicle, bleeding, drifting in and out of consciousness, and, when awake, moaning in pain. In order to extract Goodman from the vehicle, the firefighters used the “jaws of life” to cut the vehicle's

131 A.D.3d 477

roof, and Rich and three other firefighters lifted the roof off of the vehicle. In the process thereof, Rich sustained injuries to his right shoulder.

Rich commenced an action against Goodman, whose insurer later offered to settle in the sum of $25,000, which constituted the limits of Goodman's automobile insurance policy. Rich also sought coverage under the supplementary uninsured/underinsured motorists (hereinafter SUM) endorsement contained in his own automobile insurance policy issued by the petitioner, Encompass Indemnity Company (hereinafter Encompass). Encompass denied coverage, concluding that Goodman's use of his vehicle was not the proximate cause of Rich's injuries. Rich sought to arbitrate the matter, and Encompass thereafter commenced this proceeding to permanently stay arbitration or, alternatively, to temporarily stay arbitration and to direct Rich to provide requested discovery. The Supreme

14 N.Y.S.3d 493

Court granted that branch of the petition which was to permanently stay arbitration, concluding that Rich's injuries did not result from the use of Goodman's vehicle.

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][II]; see Matter of Allstate Ins. Co. v. Reyes, 109 A.D.3d 468, 468, 970 N.Y.S.2d 560 ; Matter of Liberty Mut. Fire Ins. Co. [Malatino], 75 A.D.3d 967, 968, 904 N.Y.S.2d 828 ). Factors to be considered in determining whether an accident arose out of the use of a motor vehicle include whether the accident arose out of the inherent nature of the vehicle and whether the vehicle itself produces the injury rather than merely contributes to cause the condition which produces the injury (see Matter of Allstate Ins. Co. v. Reyes, 109 A.D.3d at 469, 970 N.Y.S.2d 560 ; Zaccari v. Progressive Northwestern Ins. Co., ...