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Hartford Fire Insurance Company (Hartford Co.) motions an order

Defendant Hartford Fire Insurance Company (Hartford Co.) motions an order, in pursuit of CPLR 3212, which aims to dismiss the complaints of a truck driver and his wife, plaintiffs, on the specific ground that plaintiff is not actually insured under that of Hartford Co.’s insurance product and that he was not in fact an occupant of the insured truck at the time that the commercial truck accident happened. The Manhattan plaintiffs contradicted Hartford Co.’s expressed motion for summary judgment and made a cross motion for an order in pursuit of CPLR 3212, which purports to grant them summary judgment on the grounds of liability and goes down into the actual computation of damages and consequently in aid of NYCRR 60-2.3, which deems Hartford Co. to have given due consent in the aforesaid action amounting to a total of $25,000.

The aforesaid instant action is geared on uninsured motorist benefits wanted by the complainant in lieu with the said motor vehicle accident which took place on May 13, 2004 when the plaintiff, who stood outside of the delivery truck that he used for his job on making beer deliveries to various establishments, was suddenly hit by a box truck and was injured as he was pushed in between the box truck and his own delivery truck in the 18-wheeler crash. Following the aforesaid accident, Countrywide Insurance, the insurance carrier for the owner of the box truck, offered the full policy payment amounting to that of $25,000 to plaintiff. Subsequently, in accordance to filing a demand for settlement, the plaintiff then filed the aid instant lawsuit which seeks to recover underinsured motorist benefits that is under the SUM certification of the said policy which was issued by Hartford Co. to the employer of the complainant, Windmill Distributing Company, LP, which is doing business under the name of Phoenix Beverages, Inc. (Phoenix), that actually insured the said delivery truck which the plaintiff used in order to make deliveries. The Hartford Co. Policy actually provides underinsured motorist benefits which amounts to $1 million to the insured person as well as to any other occupant of a motor vehicle that is supposedly insured for SUM on the said policy.
In the statement given, the plaintiff further attested that he was actually newly employed by Phoenix on the day the accident happened. His job routine task at that time comprises of mainly driving the beer delivery truck as well as distributing the beer products to different establishments which includes beer distributors as well as bars. On that fateful day where he acquired personal injury in the accident, he went on the assigned delivery route which he was assigned to cover for a week.

He further stated that his first stop for deliveries was at Europa Bar in Brooklyn, New York. He had a companion at that time, his co-worker who rode as passenger and was helping him in his beer deliveries.

The truck has a standard size of about 25 to 30 feet long. The beer products which need to be delivered were placed in 12 separate bays located in the rear of the truck; each having 6 on both sides of the delivery truck. The bays can be easily retrieved thru six distinct gates that can go up and down simultaneously on both sides of the delivery truck.

The Plaintiff stressed that upon arrival at the Europa Bar, he then parked just beside the bus stop which is located at the right side of Manhattan Avenue. After he has eased parking, he then turned off the ignition, put the hazard lights on, and then went out of the delivery truck. He proceeded to remove the beer cases which was placed at the third bay right at the driver’s side of the vehicle that is situated facing traffic, and then placed the beer cases right into the hand truck. He then carefully closed the door to the compartment and went ahead to deliver the beer cases in his hand truck to Europa Bar. When he arrived at the Europa Bar, he removed the beer cases from the hand truck and then replaced them with the empty beer cases right on the hand truck that he will take back to the delivery truck.

At the delivery truck, he proceeded to unlock and open the third bay and then placed the empty cases on the pavement which he was going to return to the truck, then he discharged full beer cases from the delivery truck, and then placed the full beer cases on his hand truck for the second delivery, after which, he then went on to place the empty cases of beer on the third bay. Upon doing so, he then properly closed and locked the truck.

The plaintiff further retaliates that when he returned to the delivery truck, a police officer instructed him to move his vehicle on grounds of illegal parking at a bus stop. He then positioned the delivery truck right down at Manhattan Avenue and then parked fronting a fire hydrant. And then he went out of the vehicle; in which he made sure to turn off the engine as well as turned the hazard lights on before doing so. He and his co-worker walked back to Europa Bar with their hand trucks and transported the beer products to Europa Bar.

After he was done with his second delivery of beer products to Europa Bar, he then wheeled his hand truck to the direction of the driver’s side of the beer truck. He then unlocked and opened the third bay of the delivery truck and prepared to set the empty beer cases inside which he just got from the Europa Bar. When the truck accident happened, he was not yet unloading the empty cases as he was still moving the empty cases inside the truck to make room for the ones he got from Europa Bar. He was not leaning forward to the bay of the truck when he was doing the arrangements because the bay was full of beer cases and it was absolutely unnecessary for him to lean down because he can reach on to the beer cases even without doing so.

He also said that his co-worker who was helping him out with the deliveries was still at the Europa Bar when the accident occurred. When he was hit by the box truck that apparently made the plaintiff forcibly pushed forward, dragged about 10 to 12 feet and he was pitted in between the truck box and his delivery truck.

The specific policy included that a person insured is described to be as follows;

• The person as the name insured and his or her spouse who are cohabiting the same house • Pertains to another occupant of the insured vehicle at the time of the accident • A vehicle duly insured for SUM under a specified policy coverage • Any other type of motor vehicle that is being managed or operated by both you and your spouse
Hence, term “occupying” in relation to the subject SUM endorsement pertains to the act of entering or exiting by the plaintiff from the insured vehicle.

In congruence to its motion for summary judgment which seeks to dismiss the complaint of the plaintiff, Hartford Co. stresses that the said plaintiff was not in fact an occupant of the insured delivery truck at the time the accident took place. Further, Hartford Co. pointed out that the plaintiff already completely vacated or exited the insured delivery truck and was deemed away from the insured vehicle for a long duration of time as plaintiff and co-worker were busy with transporting beer products to Europa Bar as well as returning with the empty beer cases in the hand truck back to the delivery truck in situ. Thus, Hartford Co. states that the plaintiff’s mere brief contact with the insured vehicle while returning the empty beer cases into the bay right at the truck rear could not be considered as still being an occupant of the truck at which time the truck accident happened.

In lieu with his contradiction to that of Hartford Co.’s appeal for summary judgment and also his own cross-motion for summary judgment basing on the issues of liability, said plaintiff hands over a sworn statement which discusses the following statements in detail.

That on May 13, the plaintiff was driving the delivery truck that is owned by his employer, Phoenix, wherein he has to make rounds of deliveries of beer products to varied customers of Phoenix which includes beer establishments as well as bars. He then managed to park the delivery truck near their first stop, the Europa Bar. Further, the plaintiff adds that his departures from the delivery truck, while he was making beer deliveries as well as returning the empty beer cases into the truck, were very brief as he has every intention to immediately return to the delivery truck due to the fact that he still has lots of deliveries to do at that particular day.

He stated that he was out of his truck for just 10 minutes during the second round of deliveries that he made to Europa Bar. He then returned immediately to the delivery truck and he was moving and arranging the empty beer cases so as to make sufficient room for the other beer cans that he was going to put into the third cargo bay of the delivery truck. While he was doing this; his upper torso was actually inside the delivery truck while his feet stood firm on the ground and his hands were in direct contact with the beer cans inside the truck.

As he was busy making room inside the truck in order to place the empty beer cases inside, he was unknowingly hit at the back with the box truck. His body was pushed in a forward motion and was pinned right in between that of the box truck and the delivery truck that he was driving. Moreover, the plaintiff purports that he was indeed occupying the beer truck at that significant point in time wherein the accident occurred as he was in direct contact with the truck and his connection with it has not been blatantly terminated.

Additionally, the plaintiff contests that Hartford Co. should be prevented from denying him his SUM coverage that he deserves on specific grounds that the latter failed to serve a disclaimer in lieu with the claim for benefits that that the plaintiff has filed. Furthermore, the plaintiff also contends that Hartford Co. should be considered as to have given due consent to that of the settlement of underlying claim which was served between the plaintiff and that of the insurer for the third-party which amounts to a total of $25,000 because apparently the plaintiff’s legal counsel informed Hartford Co., in pursuit of 11 NYCRR 60-2.3, that Countrywide Insurance Company, which stands as the insurer for the third-party, had ultimately presented the full policy limit payments in the amount of $25,000 that corresponds to the finals as well as full settlement of the said plaintiff’s claim against the stated third party, and subsequently, the counsel did not receive due response from that of Hartford Co. approximately within 30 days after the notice has been delivered.

It is important to note that summary judgment is only granted when there are no given material issues of fact which stands trial. There should also be enough and substantial information to support such claim. After which, the burden of proof is now in the opposing party to produce evidence that could cripple the testimony of the plaintiff and submit the necessary material issues of fact in the court.

After due examination of given testimonies and facts, the court then finds that there are material issues of facts present and thus both parties were denied their claims. However, the court sides with the plaintiff in his claim that he was indeed occupying the said truck because of the fact that his ties with the truck was not severed as he was using it to make rounds to establishments which is a part of his work and considering that there were no previous passengers noted in the said delivery truck. Although as a matter of law they were not able to determine whether the plaintiff can be considered an occupant of the said truck and the fact that Hartford Co failed to disclaim the coverage which makes the said coverage null and void; like it never existed. There were material issued noted upon examination of the deposition of both parties that is why both claims were denied in its entirety.

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