Johnson v. Hartford Ins. Co.

• Court: New York Supreme Court
• Writing for the Court: JOHN A. MASTRELLA
• Citation: Johnson v. Hartford Ins. Co., 418 N.Y.S.2d 1009, 100 Misc.2d 367 (N.Y. Sup. Ct. 1979)
• Decision Date: 25 July 1979
• Parties: James E. JOHNSON, Plaintiff, v. HARTFORD INSURANCE COMPANY, Defendant.

Page 1009

418 N.Y.S.2d 1009

100 Misc.2d 367

James E. JOHNSON, Plaintiff, v. HARTFORD INSURANCE COMPANY, Defendant.

Supreme Court, Monroe County.

July 25, 1979.

Cucci, Welch, Colicchio & Weinstein, Rochester, for plaintiff; Warren Welch, Rochester, of counsel.

Vogt, Hensel & Krenitsky, Rochester, for defendant; Rene F. Hensel, Rochester, of counsel.

DECISION

JOHN A. MASTRELLA, Justice.

Defendant, Hartford Insurance Company, is moving for summary judgment on the ground that plaintiff, James E. Johnson, is not entitled to recovery of first-party benefits under Article 18 of the Insurance Law because plaintiff's injuries did not result from the "ownership, maintenance, or use" of the vehicle in which he was riding. Defendant is also cross moving for summary judgment for payment of medical expenses and for lost earnings.

On December 25, 1975, shortly after midnight, plaintiff was a passenger in an automobile in which another passenger, Robert O'Connor, was being driven to a gasoline station because his automobile had run out of gasoline. An open station was located, Mr. O'Connor exited from the car, had gasoline placed in an uncapped portable plastic container, and then returned to the car where he sat in the center of the front seat with the gasoline container on his lap and one hand over the uncapped top. While enroute to his disabled vehicle, O'Connor lit a cigarette causing an explosion which caused serious injury to the plaintiff. Plaintiff thereafter commenced a personal injury action against the individuals allegedly responsible for plaintiff's injuries and also an action against the Hartford Insurance Company on the ground it improperly denied plaintiff's claim for payment of first-party no-fault insurance benefits. This action was severed from the personal injury action by a prior order of this Court.

Hartford's right to summary judgment is dependant upon whether plaintiff is a "covered person" under section 671, subdivision 10 of the Insurance Law which defines such person as "any pedestrian injured through the use or operation of, or any owner, operator or occupant of a motor vehicle which has in effect the financial security required by (the Vehicle and Traffic Law) or any other person entitled to first-party benefits." Subdivision 1 of section 672 of the Insurance Law sets forth who is entitled to the payment of first-party benefits:

"Every owner's policy of liability insurance . . . shall provide for . . . and every owner of a motor vehicle required to be subject to the provisions of this article . . . shall be liable for the payment of first party benefits to:

"(a) persons, other than occupants of another motor vehicle, for loss arising out of the use or operation in this state of such motor vehicle."

Thus, plaintiff's status as a "covered person" turns on whether his injuries arose out of the "use or operation" of a motor vehicle.

Existing legislative history on Article 18 provides no guide for interpreting "use or operation" (see Report of Joint Legis. Committee on Ins. Rates, Regulations and Recodification of Insurance Law, N.Y.Legis.Doc., 1973, No. 18, pp. 5-14; see also, Montgomery v. Daniels, 38 N.Y.2d 41, 49-52, 378 N.Y.S.2d 1, 7-9, 340 N.E.2d 444, 448-450 (summary of legislative history)). Decisional law developed in interpreting insurance policy clauses containing similar phrases would thus seem to be an aid for purposes of interpreting the statutory language as it applies to the facts in the present case (see 12 Couch on Insurance 2d, §§ 45:47-45:52, 45:64 and 45:68-45:80, citing examples and authorities; see also, 30 N.Y.Jur., Insurance, §§ 1221-1223; Annot., 89 A.L.R. 150, 163-173).

The Fourth Department, interpreting this statutory language as it applies to campers, held that the "no-fault coverage required by the statute applies for use of the motor vehicle qua motor vehicle . . ." (Reisinger v. Allstate Ins. Co., 58 A.D.2d 1028, 397 N.Y.S.2d 52, affd. on mem. at App.Div., 44 N.Y.2d 881, 407 N.Y.S.2d 695, 379 N.E.2d 221). In that case the court denied recovery of first-party benefits for injuries sustained by the plaintiff Reisinger "when the gas cook stove in the insured 'mini motor home' exploded during use. At the time the motor vehicle was parked in a campground and Mrs. Reisinger was preparing breakfast." The court, in effect, held that no-fault insurance did not cover the motor vehicle while it was being used in the nature of a home rather than as a motor vehicle. Following and citing Reisinger, the Second Department in a recent case also denied recovery where a claimant was injured when she fell while getting out of bed inside a tent trailer which was attached to the insured motor vehicle parked inside a campground (Walters v. Government Employees Ins. Co., 66 A.D.2d 779, 410 N.Y.S.2d 663).

In an earlier decision under Article 18 of the Insurance Law, cited by the court in Reisinger, the Fourth Department denied recovery of first-party benefits to the driver of a snowmobile who ran into an "unoccupied locked vehicle parked on a public street in front of the owner's residence." (McConnell v. Fireman's Fund Amer. Ins. Co., 49 A.D.2d 676, 677, 370 N.Y.S.2d 730, 732). The court stated that "(w)hile authority broadly interprets the phrase 'use or operation' the determinative predicate in establishing liability therefrom would appear to be the designated purpose of the use or activity of the involved motor vehicle which is the proximate cause of the injury or damage sustained." (See also, Pavone v. Aetna Cas. & Sur. Co., 91 Misc.2d 658, 398 N.Y.S.2d 630; Matter of Senia v....