Thomas v. Travelers Ins. Co.
| Decision Date | 11 March 1976 |
| Citation | 87 Misc.2d 136,384 N.Y.S.2d 610 |
| Parties | John THOMAS, Plaintiff, v. The TRAVELERS INSURANCE COMPANY and Allstate Insurance Co., Defendants. |
| Court | New York Supreme Court |
Defendant, The Travelers Insurance Company (Travelers), has moved pursuant to CPLR 3211(a) for judgment dismissing plaintiff's complaint on the ground that it (Travelers) has a defense founded upon documentary evidence (E.B.T.) and further on the ground that the complaint fails to state a cause of action.
Plaintiff opposes his carrier's (Travelers) motion and seeks an order granting judgment against Travelers or the Allstate Insurance Co. (Allstate), a codefendant.
It is apparent that defendants (insurance companies) desire a declaration as to the definition of a 'user' under § 671 and § 672 of the Insurance Law.
On July 13, 1974 plaintiff was injured at approximately midnight on New York State Route 17 when returning to his automobile after leaving a restaurant. The examination before trial disclosed that plaintiff is unable to determine whether he was actually physically opening the door to his car when he was struck by an automobile driven by an Allstate insured (Nevinger). The examination before trial of the driver states that plaintiff had closed the car door and then stepped back when he was struck.
The plaintiff, John Thomas, has an automobile liability policy with Travelers pursuant to Article XVIII Comprehensive Automobile Insurance Reparations Act. Travelers contends that plaintiff was not a user of his vehicle within the meaning of § 671 et seq. of the Insurance Law and that first party benefits under no fault are solely recoverable from Allstate. It is Travelers contention that the plaintiff was a pure pedestrian and not a 'user' of his own vehicle under the proper definition.
The other question is, was he also 'entering into' the vehicle to be classified as occupying the vehicle under the terms of Part III of Travelers insurance policy.
The Court is aware of the case law in the area of a 'user' of a vehicle or a person 'entering' for purposes of medical-pay coverage under individual insurance policies prior to no fault. These cases have uniformly held a person to be covered and entitled to medical-pay benefits. Lokos v. New Amsterdam Casualty Co., 197 Misc. 40, 93 N.Y.S.2d 825 and Katz v. Ocean Acc. & Guarantee Corp., 202 Misc. 745, 112 N.Y.S.2d 737. But those cases were directed towards questions unrelated to the new statutory policy encompassed under the new no fault law. They are distinguishable from the instant case in that the plaintiff herein was not upon or actually entering his vehicle when he was struck. The key inquiry is, was plaintiff engaged in the Actual exercise or enjoyment of any right or property in his vehicle. This conforms to th definition of a 'user' as defined in Black's Law Dictionary, (Fourth Edition), p. 1711.
An additional test of whether a person is engaged in the use of a vehicle may be made if all the following three criteria are answered in the affirmative:
(1) did the accident arise out of the inherent nature of the automobile as such;
(2) did the accident occur within the territorial limits of the automobile and the actual use, loading or unloading, must not have terminated; and
(3) the automobile must not have merely contributed to the cause of the condition but itself must produce or be a proximate cause of the injury.
The facts herein dictate a negative response to at least one of these questions. Additionally, the term 'use' is the general catchall of the insuring clause designed and construed to include all proper uses of a vehicle not falling within one of the previous terms of definition. 30 N.Y.Jur.Insurance, § 1222 (p. 654). 'Use' in an auto policy may not be construed to cover injuries that result from acts wholly disassociated...
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