Katz v. Ocean Accident & Guar. Corp.

• Decision Date: 21 May 1952
• Parties: Harold Katz, Plaintiff,<BR>v.<BR>Ocean Accident and Guarantee Corporation, Ltd., Defendant.
• Court: New York District Court

202 Misc. 745

Harold Katz, Plaintiff,

v.Ocean Accident and Guarantee Corporation, Ltd., Defendant.

May 21, 1952.

Irving J. Panzer for plaintiff.

Herbert F. Hastings, Jr., and Thomas R. Evans for defendant.

BOCCIA, J.

Plaintiff, the holder of an insurance policy issued by the defendant, sues the defendant to recover the sum of $500 under the "medical payments" clause of the policy. The policy is one commonly referred to as an Automobile Liability Policy and the clause in question reads as follows: "To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, ambulance, hospital, professional, nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon, entering or alighting from the automobile if the automobile is being used by the named insured or with his permission."

It appears that on August 12, 1951, at about 11:20 P.M. the plaintiff's wife, returning from the theatre, had parked plaintiff's automobile in front of their home. The driver's seat where the plaintiff's wife had been seated was towards the center of the roadway. She alighted from the automobile and was in the act of locking the car with her hand upon the door, when suddenly perceiving an oncoming vehicle coming toward her, she ran from the point where she was standing adjacent to the left front door of the vehicle and towards the rear of the car. There was another vehicle parked in the rear of plaintiff's vehicle and plaintiff's wife in an effort to avoid the oncoming vehicle ran between plaintiff's car and the other parked car to the rear of plaintiff's car as a result of which the oncoming vehicle struck the plaintiff's vehicle causing it to be pushed backward and crushing plaintiff's wife between plaintiff's vehicle and the parked vehicle.

The oncoming vehicle which had prevented plaintiff's wife from locking the door of plaintiff's car continued on its way and was not apprehended.

Plaintiff's wife was severely injured and hospitalized and it is conceded that plaintiff incurred at least $500 in medical expenses for the treatment of his wife's injuries.

The point to be determined in this case is whether the injuries sustained by plaintiff's wife were "caused by accident, while in or upon, entering or alighting from the automobile".

The defendant resists payment to the plaintiff contending that plaintiff's wife was not in, upon, entering or alighting from the automobile at the time of the accident. Defendant urges in support of its contention that in order to recover, the injured person must have had some sort of actual physical contact of some part of his person with some part of the automobile at the time of the accident.

There is a paucity of adjudications upon this particular subject. Defendant relies on the case of New Amsterdam Cas. Co. v. Fromer (75 A. 2d 645) decided by the Municipal Court of Appeals for the District of Columbia. In that case the plaintiff who was operating his automobile, believing that he had come in contact with another vehicle, pulled to the curb, got out and walked back to the other car. After ascertaining that there had been no contact and while returning to his automobile in order to continue on his journey and when about six feet from the rear of his vehicle, he was struck and thrown against the rear bumper of his car. It was plaintiff's contention in that case that he was "entering" the automobile when struck and the court, in deciding adversely to the plaintiff, held (p. 646): "We cannot agree that the controlling terms of the policy are doubtful in meaning. Viewed in their context and applied to the instant facts we think the words `while in or upon, entering or alighting' are plain and unambiguous, and that the trial court erred in holding otherwise. Hence the case must be tested and decided according to the ordinary meaning that common speech imports, and not by resort to the rule of liberal construction."

Applying the doctrine enunciated in the New Amsterdam Cas. Co. v. Fromer case (supra), to the facts at bar, it would appear that plaintiff's wife was still in the act of alighting from the car because the ordinary individual reading the terms of the policy in the instant case would naturally conclude that locking the door of a car is a natural and consequential act related to the actual alighting from the car and securing same properly. The wording used by the defendant in its policy must be construed in the manner which would give the same "ordinary meaning" in "common speech". Plaintiff's wife who still had her hand upon the door after having alighted from the car was in my opinion performing an act which the ordinary person would consider part of "alighting from the automobile". This view seems to be supported by the few cases that have discussed similar clauses.

So, in the case of Lokos v. New Amsterdam Cas. Co. (197 Misc. 40, affd. 197 Misc. 43). Mr. Justice McCAFFREY, of this court, found that the plaintiff while traveling uptown on the West Side Highway in New York City stopped his car in order to investigate a noise from the front of his automobile. After alighting from his car he observed that the front bumper had fallen to the pavement and was hanging to one side. While he was in the act of tieing the bumper up and leaning over the car with the bumper in his hands he sustained the injuries for which plaintiff claimed compensation under the clause which is practically similar to the one at bar. In deciding that the plaintiff was entitled to recover, Judge McCAFFREY aptly construed the meaning to be applied to the policy and used the following language: "Can it be said that the insurer attached to the words `upon' a meaning so narrow as to encompass only such cases in which the entire weight of a person's body was resting upon or supported by the vehicle? Considering the usual positions of a person in relation to a car in use and the fact that other enumerated risks include acts of being upon the automobile in the sense of resting upon or being supported by it, it is reasonable to give the term a broader meaning including some acts in which the person is in contact with the car." (P. 42.)

The Supreme Court of Rhode Island in the case of Sherman v. New York Cas. Co. (82 A. 2d 839) had occasion to construe the interpretation of the word "upon" in a medical payment clause similar to the one used by the defendant in this case. There, the plaintiff had parked his automobile and had left it. He observed his car rolling...