THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S SLIP AND FALL ON ICE AND SNOW AFTER GETTING OUT OF A VEHICLE RESULTED FROM OPERATION OF THE VEHICLE SUCH THAT THE INSURER IS OBLIGATED TO DEFEND THE OWNER OF THE VEHICLE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over a partial dissent, determined the insurer, Progressive, was obligated to defend the owner of a vehicle for injuries suffered by a passenger (Malone) who slipped and fell on ice and snow after getting out of the car. The question was whether the injury resulted from “operation” of the vehicle:

“Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines” … . While a claim that an accident occurred during unloading “does not require a showing that the vehicle itself produced the injury . . . , it is insufficient to show merely that the accident occurred during the period of loading or unloading. Rather, the accident must be the result of some act or omission related to the use of the vehicle” … .

… Malone specifically alleged in the underlying action that Anthony (the vehicle-owner’s son) parked his vehicle in a negligent manner on a slippery surface and that such negligence was a proximate cause of her accident. Progressive submitted an affidavit from Malone … in which she stated, “I slipped on the snowy and icy condition as I was taking my first steps toward the house. I dropped my child and my legs slid, along the gradient, underneath the CAPERNA Vehicle.” Progressive further submitted Malone’s deposition testimony in the underlying action, which demonstrated that the door of the vehicle was open and that she had only taken two steps away from the vehicle when she slipped and fell on snow and ice located on the lawn. As such, Progressive failed to establish its prima facie entitlement to judgment as a matter of law declaring that the accident was not a covered event, as there is a triable issue of fact as to whether Malone had completed unloading the vehicle. As there are allegations that the vehicle was used negligently and that such negligence contributed to the accident, Progressive was not entitled to summary judgment declaring that it is not obligated to defend or indemnify Arthur (the vehicle owner) in the underlying action … . Matter of Progressive Dr. Ins. v Malone, 2024 NY Slip Op 03178, Second Dept 6-12-24

Practice Point: “Operation” of a vehicle may include parking the vehicle in a manner which makes getting out of it dangerous. Here a passenger slipped and fell on ice and snow after getting out of the parked vehicle and the insurer was obligated to defend the owner of the vehicle.