Opinion
No. 103919/10.
2010-07-13
In the Matter of the Application of COMMERCE & INDUSTRY INSURANCE i/s/h/a Private Client Group, A Division of AIU Holdings, Petitioner, v. To Permanently Stay the Arbitration Sought to be Had by Elaine REISS, Respondent.
Kevin Burns, Esq., Goldberg Segalla, LLP, White Plains, for Petitioner. Phillip Russotti, Esq., Wingate, Russotti & Shapiro, LLP, New York, for Respondent.
Kevin Burns, Esq., Goldberg Segalla, LLP, White Plains, for Petitioner. Phillip Russotti, Esq., Wingate, Russotti & Shapiro, LLP, New York, for Respondent.
MICHAEL D. STALLMAN, J.
Upon the foregoing papers, it is hereby ADJUDGED that the petition for a permanent stay of an arbitration for supplemental uninsured motorist benefits commenced by respondent is granted, and it is hereby
ORDERED that the arbitration is permanently stayed.
Respondent filed a demand for arbitration for supplemental uninsured motorist benefits with the American Arbitration Association, arising out of an alleged hit and run accident on May 1, 2009, while respondent was crossing the street with non-party Anthony Manheim. According to the police report, Manheim and respondent were pedestrians crossing in the crosswalk when they were struck by a vehicle owned and operated by Michael Rea, who is insured by Geico Insurance. According to petitioner, Geico Insurance tendered its $25,000 policy limits to respondent, who presented a SUM claim under the policy of insurance that petitioner issued to Manheim.
The issue presented is whether respondent is an “insured” under Manheim's policy, as a person “occupying” Manheim's vehicle. It is undisputed that, at the time of the accident, respondent was walking across the street to reach Manheim's vehicle, which was parked across the street. Respondent contends that the two were travelling to Manheim's home in Sagaponack, New York, and that Manheim stopped the vehicle across from a restaurant where he and respondent ate a bowl of soup and used the restroom. Reiss Opp. Affirm. ¶ 10, 14.
As respondent indicates, courts have afforded a liberal interpretation to the term “occupying” a vehicle in a SUM endorsement. See Rosado v. Hartford Fire Ins. Co., 71 AD3d 860, 861 (2d Dept 2010), citing Rowell v. Utica Mut. Ins. Co., 77 N.Y.2d 636, 639 (1991). Respondent relies upon Matter of Cepeda's Estate v. U.S. Fidelity & Guaranty Co. (37 A.D.2d 454, 455 [1st Dept 1971] ).
“Where a departure from a vehicle is occasioned by or is incident to some temporary interruption in the journey and the occupant remains in the immediate vicinity of the vehicle and, upon completion of the objective occasioned by the brief interruption, he intends to resume his place in the vehicle, he does not cease to be a passenger.”
Matter of Rice v. Allstate Ins. Co., 32 N.Y.2d 6, 10 (1973), citing Matter of Cepeda's Estate.
Here, respondent did not remain in the immediate vicinity of the vehicle. Respondent crossed the street and entered an indoor location, where she and Manheim faced no danger from vehicular traffic. The interruption is not brief, in that respondent and Manheim ordered a bowl of soup, ate the soup, and used the restroom of the restaurant. At that point, respondent could no longer be considered “occupying” Manheim's vehicle. Respondent's intent to return to the vehicle and to continue driving to Sagaponack is insufficient. “More than a mere intent to occupy a vehicle is required to alter the status of pedestrian to one of ‘occupying’ it.” Matter of Rice, 32 N.Y.2d at 11;see also Matter of Travelers Ins. Co. v. Wright, 202 A.D.2d 680 (2d Dept 1994).