UNINSURED MOTORIST ACCIDENT CLAIM FAILS WHERE CONTACT WITH A CARDBOARD BOX BECAUSE IT'S NOT PART OF A VEHICLE

Court: Supreme Court, Appellate Division, First Department, New York

Case: In re: State Farm Mutual Automobile Insurance Company (Beddini)

Date: Oct. 13, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

Comment: Uninsured motorist insurance coverage is something that a motorist gets from his own automobile insurance company that pays for accidents and personal injury with an uninsured motorist. Examples are: (1) a car that doesn't have insurance because its owner stopped paying the insurance bill; (2) a stolen car; or, (3) a hit-and-run accident with an unidentified vehicle. In the last instance, New York uninsured motorist insurance policies require "contact." That means if a car just cuts you off, that's not good enough to make a claim; it has to have struck your body or your vehicle.

There is also a line of cases that say if an integral part of an unidentified vehicle hits your car, you can recover. So if a tire flies off a car, or a bumper, or a mirror, or some other car part and, somehow, the other vehicle drives away, this is considered "contact" for uninsured motorist purposes.

In the case discussed in today's blog, a scooter was struck by a box that, presumably, came from another vehicle. The appeals court holds that this is not good enough to meet the requirement of "contact" under the scooter's uninsured motorist insurance provision. This seems incorrect and a little silly to me, for where else did the box on the roadway come from? Nevertheless, the appeals court has spoken.

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Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 1, 2011, which denied the petition to permanently stay arbitration of respondents' uninsured motorist claim and dismissed the proceeding, unanimously reversed, on the law, without costs, and the petition granted.

Respondents were traveling on a Vespa motor scooter behind a pickup truck being operated by an unidentified driver. A large, cardboard box measuring approximately five feet by four feet, flew off of the pickup truck and became lodged in the front wheel of the Vespa. This caused respondents to be ejected from the motorcycle and to sustain serious injuries. Respondents filed an uninsured/underinsured motorist claim under respondent Beddini's automobile insurance policy issued by petitioner and they demanded arbitration of the claim.

In Matter of Allstate v. Killakey (78 N.Y.2d 325 [1991]), relied upon by the motion court, the claimant was killed when a tire and rim from an unidentified vehicle struck the claimant's vehicle, causing it to crash. The Court of Appeals reversed the stay of arbitration of the uninsured motorist claim, holding that physical contact occurs "when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle" (id. at 329, 574 N.Y.S.2d 927, 580 N.E.2d 399). The Court implicitly found that the tire and rim that caused the accident were essential to the operation of the truck, and thus, an integral part of it. Here, however, the cardboard box is not an integral part of the pickup truck. Accordingly, respondents' collision with the box does not constitute the type of physical contact required to impose uninsured motorist coverage (see e.g. Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116 [1971]; Matter of Insurance Co. of N. Am. [Carrozo], 203 A.D.2d 210 [1994]).

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