![]() |
||||||||||||||||||||
|
Eric Turkewitz, The Turkewitz Law Firm, New York, NY |
||||||||||||||||||||
Tuesday, February 2, 2010Court 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 Labels: Insurance Industry, Supplemental Underinsured Policy (SUM)
Comments:
The OGC's opinion letter is here.
Post a Comment
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. Links to this post: << Home
The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York rules going into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) As of July 14, 2008, Law.com became an advertiser, as you can see in the sidebar. Law.com does not control the editorial content of the blog in any way. Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others, that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained. Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice. Finally, we are not responsible for the comments of others that may be added to this site.
|
Subscribe by Email
|
|||||||||||||||||||
![]() |
![]() |
![]() |
|||||||||
![]() |
An Affiliate of the Law.com Network
|
![]() |
|||||||||
![]() |
![]() |
![]() |
November 2006
December 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
November 2007
December 2007
January 2008
February 2008
March 2008
April 2008
May 2008
June 2008
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
Copyright © 2007 Eric Turkewitz & The Turkewitz Law Firm
About the New York Personal Injury Law Blog:
An attorney's blog on New York personal injury law,
medical malpractice, the civil justice system
and cases of interest.
|
|
Design by Lidija Tomas Design / Studio 4D |