Walton v. Lumberman's Mut. Cas. Co.

• Court: New York Supreme Court
• Writing for the Court: THOMAS W. KEEGAN
• Citation: Walton v. Lumberman's Mut. Cas. Co., 618 N.Y.S.2d 735, 162 Misc.2d 560 (N.Y. Sup. Ct. 1994)
• Decision Date: 04 October 1994
• Parties: William M. WALTON, Plaintiff, v. LUMBERMAN'S MUTUAL CASUALTY COMPANY, Defendant.

Page 735

618 N.Y.S.2d 735

162 Misc.2d 560

William M. WALTON, Plaintiff, v. LUMBERMAN'S MUTUAL CASUALTY COMPANY, Defendant.

Supreme Court, Albany County.

Oct. 4, 1994.

Bohl, Della Rocca & Dorfman, P.C. (John E. Dorfman, of counsel), Albany, for plaintiff.

Thuillez, Ford, Gold & Conolly (Susan L. Lore, of counsel), Albany, for defendant.

THOMAS W. KEEGAN, Justice.

Plaintiff moves this Court for an order granting summary judgment, pursuant to CPLR 3212, in this action for first party benefits claimed to be due him under a policy issued by the defendant in accordance with Article 51 of the Insurance Law, commonly known as the "No-Fault" Law. Defendant cross-moves for summary judgment, seeking dismissal of the plaintiff's claim.

On January 2, 1993, plaintiff was operating a tractor-trailer owned by Crowley Foods, Inc. in the course of his employment with Crowley Foods. Plaintiff was delivering dairy products to the Grand Union store in Niskayuna, New York. Upon arrival, plaintiff parked his truck adjacent to the Grand Union's loading dock, got out of the truck and opened the rear cargo door. He then stepped onto the store's levelator. The levelator is constructed and operated so that its metal plates can be connected to the rear of a delivery truck to allow for the placement of goods and then lowered to the ground so that the goods can be moved into the store. After obtaining the necessary control devices, plaintiff brought the levelator to the same height as the rear of the tractor-trailer, and moved the dairy products from the tractor-trailer onto the levelator. As plaintiff was standing on the levelator, a plate broke or malfunctioned, tipping the levelator. Plaintiff fell to the ground and suffered a serious injury.

In addition to filing suit against the Grand Union Company for negligently maintaining the levelator, plaintiff filed a no-fault application with defendant insurer on February 9, 1993. On February 17, 1993, defendant sent plaintiff a partial denial of a claim notice because plaintiff was eligible for worker's compensation. Defendant also informed plaintiff that they would determine whether he was entitled to any additional no-fault benefits.

On June 3, 1993, plaintiff received notice of denial for the following reason:

"The insured vehicle was not the actual instrument which caused the injury to William Walton. The accident did not arise out of the inherent nature of the truck. The truck did not contribute to cause a condition which resulted in the injury to William Walton. Therefore, No-Fault benefits are hereby denied."

Plaintiff then brought this action, seeking no-fault benefits on two grounds. First, that the plaintiff was engaged in the "loading and unloading" of the vehicle at the time of the levelator malfunction so as to come within the provisions of New York's No-Fault Law (Insurance Law § 5103[a][1] providing first party benefits for "basic economic loss on account of personal injury arising out of the use or operation of [such] motor vehicle." (Insurance Law § 5102[b].) Second, that the defendant failed to give timely notice of its denial pursuant to Insurance Law § 3420(d), and thus, was precluded from denying the claim for first party benefits. The Court finds both arguments unavailing.

Plaintiff contends that he is entitled to first party benefits because his situation falls within a "use" as contemplated by Insurance Law § 5103(a)(1). This section provides for first party benefits to persons, other than occupants of another motor vehicle or a motorcycle, for losses arising out of the use or operation in this state of such motor vehicle. "Use or operation," pursuant to 11 NYCRR § 65.12(e), has been defined to include the loading or unloading of such vehicle. Plaintiff, relying on Wagman v. American Fid. & Cas. Co., 304 N.Y. 490, 109 N.E.2d 592, argues that liability coverage during the loading and unloading of such vehicle includes "not only the immediate transference of the goods to and from the vehicle, but the 'complete operation' of transporting the goods between the vehicle and the place from or to which they are being delivered." Id. at 494, 109 N.E.2d 592.

Defendant, on the other hand, argues that the Wagman rule is inapplicable and that the test announced in Matter of Manhattan and Bronx Surface Transit Authority (Gholson), 71 A.D.2d 1004, 420 N.Y.S.2d 298, is the appropriate one to employ. In Gholson, the Second Department set forth three rules to determine the liability of an insurer under a standard automobile policy. These rules are that: "1. The accident must have arisen out of the inherent nature of the automobile, as such; 2. The accident must have arisen within the natural territorial limits of an automobile, and the accidental use, loading, or unloading must not have terminated; 3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury." Id. at 1005, 420 N.Y.S.2d 298.

In few instances have the Wagman and Gholson rules come into...