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DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY.

The Second Department determined summary judgment was properly granted to the defendant insurer. The insurer, Republic, issued an uninsured-underinsured motorist policy to plaintiff’s employer. The policy applied to anyone who was an occupant of the vehicle at the time of injury. Here plaintiff (Bosco) had parked the car and gone across the street. As Bosco crossed the street to return he was struck by a car:

A person remains an occupant of a vehicle, even if that person is not in physical contact with the vehicle, “provided there has been no severance of connection with it, his [or her] departure is brief and he [or she] is still vehicle-oriented with the same vehicle” … . A connection to a vehicle will be severed “upon alighting therefrom to perform a chore which was not vehicle-oriented” … .

Moreover, there has to be “[m]ore than a mere intent to occupy a vehicle . . . to alter the status of pedestrian to one of occupying’ it” … . “[O]ne is [not] considered to be occupying a car if he is merely approaching it with intent to enter” … .

Here, Republic met its prima facie burden of establishing, as a matter of law, that Bosco was not occupying the insured vehicle at the time of the accident … . The evidence Republic submitted demonstrated that Bosco left the insured vehicle and walked across the street to go to his office on the second floor of the building, to retrieve documents. Thus, Bosco’s leaving the insured vehicle was not a temporary break in his journey such that he remained in the immediate vicinity of the insured vehicle … . Moreover, the evidence demonstrated that the accident occurred as Bosco was walking back across the street, and that he had yet to reach the insured vehicle. The evidence therefore showed that Bosco had a mere intent to enter the insured vehicle and was not an occupant of the insured vehicle at the time of the accident … . J. Lawrence Constr. Corp. v Republic Franklin Ins. Co., 2016 NY Slip Op 08349. 2nd Dept 12-14-16

 

INSURANCE LAW (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/CONTRACT LAW (INSURANCE POLICY, DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/PEDESTRIANS (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)/TRAFFIC ACCIDENTS (PEDESTRIANS, (DRIVER STRUCK AS HE WAS ABOUT TO ENTER HIS PARKED CAR WAS NOT AN OCCUPANT OF THE CAR WITHIN THE MEANING OF THE INSURANCE POLICY)

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