New York Personal Injury Law Blog: Court Finds Insurance Covers Fireman in Own Car

Eric Turkewitz, The Turkewitz Law Firm, New York, NY  

Tuesday, February 2, 2010

 

Court Finds Insurance Covers Fireman in Own Car

This is the issue in a nutshell: If a volunteer firefighter is in an accident while responding to an emergency, and the insurance policy of the car that clobbered him is already exhausted, can he get the benefits of the fire department's own Supplemental Uninsured/Underinsured Motorist Endorsement (a/k/a the SUM policy)?

In a matter of first impression, the trial court in American Alternative Insurance v. Pelszynski said yes. The matter came before Suffolk County Supreme Court Justice Mark Cohen when the fireman filed for arbitration on the policy and the insurance carrier brought an action in Supreme Court to stay the proceedings, claiming the fireman's car was not part of the coverage.

Justice Cohen shot down that idea, relying on a New York State Insurance Department informal opinion, dated February 8, 2002, which interpreted the SUM policy as similar to one where a person drives his own car for a business. He wrote that:
The opinion found that an employee of the business operating their own vehicle during the course of employment and while acting within the scope of their duty would be covered under the SUM endorsement.
If the coverage was available to someone in their own car using it for a business, then it should likewise be applicable to the fire department.

If it was the fireman's lawyers that found that insurance department opinion for the judge, then that was some good lawyering by his counsel, Kevin Grennan.

h/t NYLJ ($)

Addendum: More from Roy Mura in the comments and at Coverage Counsel

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Comments:
The OGC's opinion letter is here.

Footnote #2 of the court's decision is important. The insurer apparently did not timely assert one of the exclusions that is found in the prescribed UM/SUM endorsement that would otherwise negate coverage for employees or volunteers of a named insured injured while using their own motor vehicles if those vehicles are not specifically insured for SUM coverage under their employers' or principals' business auto policy:

This SUM coverage does not apply:

2. to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of this policy.

The "insured" as used in that exclusion would be the church employee in the OGC opinion letter and the volunteer firefighter in this case.

Oddly, on its face, this exclusion seemingly would not apply if the employee or volunteer of the named insured were using someone else's vehicle, i.e., a non-owned vehicle. I guess the underwriting intent is to not provide SUM coverage for the use of owned vehicles that employees or volunteers regularly use. Nonetheless, the implied requirement that the employee or volunteer be acting within the scope of his or her "employment" by the named insured at the time of the accident remains, regardless of the vehicle's ownership.

So, an employees who is injured in the course of his employment while driving someone else's car may be entitled to SUM coverage under his employer's business auto policy if it includes SUM coverage? Under this decision, it appears so.
 
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