STATE OF NEW YORK
25 BEAVER STREET
NEW YORK, NEW YORK 10004
|George E. Pataki
The Office of General Counsel issued the following opinion on January 18, 2005, representing the position of the New York State Insurance Department.
RE: Automobile Insurance Coverage for Loading and Unloading of Persons Being Transported by an Ambulance
When does coverage under an automobile insurance policy issued in New York apply to a person being transported by ambulance, who is injured prior to boarding, or after removal from, the ambulance?
Most New York State court decisions have held that, in order for coverage under an automobile insurance policy to apply to a person being transported by ambulance who is injured prior to boarding or after removal from the ambulance, the injury must be a result of an act or omission related to the use or operation of the ambulance. Such a determination is dependent upon the specific facts and circumstances of each case.
An insurance broker from Massachusetts states that, in her experience under Massachusetts law, the loading exposure under an automobile insurance policy begins when the insured takes possession of the item or person being transported, and that the exposure ends when the delivery is made to the final destination point. The broker states that incidences that occur during this process are covered by automobile insurance (with the exception of malpractice type matters) because they arise from the use of the automobile and such use is the primary business of delivery companies and ambulance service providers.
The broker further states that New York automobile insurers have been denying coverage for claims arising from the transportation of persons by ambulance where the incidences occurred while the persons being transported were not in physical contact with, or in close proximity to, the ambulance, and that she was directed to file the claims with the insureds general liability insurers. The broker questions the correctness of these denials.
As the accidents to which the broker referred occurred in New York, the applicable law is New York law. The governing legal standard in evaluating the situation presented will be determined by whether the insured is making a claim for no-fault benefits or instituting a third-party liability action against the ambulance service provider. The legal standards are similar but not identical in determining whether the insurer of the ambulance must provide coverage for injuries suffered by the injured person.
In 1973, the New York State legislature enacted the "Comprehensive Motor Vehicle and Insurance Reparations Act," which is popularly known as the "no-fault automobile insurance law." It has been codified as Article 51 of the New York Insurance Law (McKinney 2000). Pursuant to N.Y. Ins. Law § 5103, every owners policy of automobile liability insurance issued on a motor vehicle must provide for the payment of first-party benefits1 to persons, other than occupants of another motor vehicle or motorcycle, for loss arising out of the use or operation in this state of a motor vehicle.
N.Y. Codes R. & Regs. tit. 11, § 65.12(e) (Regulation 68) states that the "use or operation of a motor vehicle includes the loading or unloading of such vehicle."
In Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 644 N.Y.S.2d 133 (1996), a case decided under the no-fault law, the plaintiff was injured while unloading a tractor-trailer at the supermarket where he was delivering goods. The plaintiff backed the truck up to the loading dock of the supermarket. The supermarket provided a device to assist in delivering goods that is known as a levelator, which allowed the user to lower goods from the truck to the loading dock. The plaintiff stood on the levelator with the delivered goods and as he lowered it to the ground, it toppled over, throwing him to the ground, causing him to sustain injuries. The plaintiff argued that the injuries he sustained occurred during the act of unloading his vehicle, therefore, he was using the vehicle within the meaning of the no-fault law. The Court disagreed, stating:
The mere fortuity that plaintiffs injury occurred while he was engaged in unloading the truck does not support a claim for no-fault benefits because the vehicle itself was not a cause of the damage. The vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises. Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but which are wholly unrelated to its use. The decision is consistent with other which have considered the scope of the no-fault statute and have generally held that no-fault benefits are unavailable when a party is injured by an instrumentality other than the vehicle itself. . . . The common thread in these decisions is that no-fault liability will not attach when the injury is caused by something other than a motor vehicle because in such circumstances the incident cannot be considered an accident related to the use of the motor vehicle. In sum, no fault insurance was adopted in this State to provide a system to compensate victims of vehicular accidents. A person engaged in loading or unloading the vehicle may be using it within the meaning of the statute, but that does not necessarily mean that his or her injuries arose out of the use of the vehicle. In such circumstances, if the injuries are caused by something other than the vehicle itself, the injuries cannot be said to have arisen out of the use of the vehicle and thus no-fault party benefits are unavailable to the injured party.
Id. at 215 216, 644 N.Y.S.2d 135 136.
In the situation where Article 51 is not applicable, as when a third-party liability action is brought, N.Y. Ins. Law § 3420(h) (McKinney Supp. 2004) is,2 and it states in relevant part:
In this section, the term "insurance upon any property or risk located in this state" includes insurance against legal liability arising out of the ownership, operation or maintenance of any vehicle which is principally garaged or principally used in this state. . . .
"Ownership, operation or maintenance of a vehicle" encompasses the act of loading and unloading a vehicle and includes the act of moving a person into or out from a vehicle under general principles of liability. Broome County Coop. Fire Ins. Co. v. Aetna Life & Casualty Co., 75 Misc.2d 587, 347 N.Y.S.2d 778 (Broome Co. 1973).
In Wausau Underwriters Ins. Co. v. St. Barnabas Hosp., 145 A.D.2d 314, 534 N.Y.S.2d 982 (1st Dept 1988), a person who was transported by ambulance was injured when she fell on the hospitals hallway entrance stairs. It was claimed that the ambulance provider, as part of its transportation services, was supposed to escort the woman in through the hospital, and that her injury occurred as a failure to provide that service. The court stated that "[w]here coverage is provided for use and operation of a vehicle, to invoke even an insurers duty to defend, the use of the motor vehicle must be the proximate cause of the injury." Id. at 315, 534 N.Y.S.2d 983, citing Lumbermens Mut. Cas. Co. v. Logan, 88 A.D.2d 971, 451 N.Y.S.2d 804 (2d Dept 1982). The court further reasoned: "The use of Futures ambulette was in no way involved in causing Ms. Allens injuries. Regardless of what services Future is required to provide to its patients in escorting them into the hospital, an issue that is related to liability, not coverage, Wausau is not obligated to defend or provide indemnity for a claim based on an accident which does not arise from the use or operation of the ambulette." Id. at 315, 534 N.Y.S.2d 983.
In Elite Ambulette Corp. v. All City Ins. Co., 293 A.D.2d 643, 740 N.Y.S.2d 442 (2d Dept 2002), an ambulette attendant moved the person to be transported into a manual wheelchair that was easier to maneuver onto the ambulette. The wheelchair had no rubber on its wheels, as it should have, which made the brake lever ineffectual. The attendant carried the patient down a flight of stairs from the patients apartment, and left the patient at a vestibule inside the building that was atop a short flight of stairs. The attendant went upstairs to retrieve the patients heavier wheelchair, and while he was gone, the patient rolled down the short flight of stairs, fell from the chair and was injured. The court noted that:
[a]s alleged in his complaint in the underlying action, Labiaks injuries occurred inside his home, as a result of a defective wheelchair and a careless attendant. The covered ambulette parked outside was not in any way involved in the accident. While the terms use and operation do include acts of loading and unloading, the accident here occurred away from, and incidental to, the covered vehicle. Where coverage is provided for use and operation of a vehicle, to invoke an insurers duty to defend and/or indemnify, the use of the motor vehicle must be more closely related to the injury. Because the accident was not the result of any act or omission related to the use of the vehicle, the Supreme Court properly declared that All City was not obligated to defend and indemnify Elite. (Citations omitted.)
Id. at 644-5, 740 N.Y.S.2d 443.
While the opinion in National Contl/Progressive Claims Group v. Allied Cent. Ambulance Serv., Inc., 5 A.D.3d 745, 773 N.Y.S.2d 580 (2nd Dept 2004) is brief, it nonetheless reinforces, and cites, the holding in Elite Ambulette, supra. The court stated therein: "Contrary to the appellants contentions, the Supreme Court correctly declared that the plaintiff insurer is not obligated to defend and indemnify it for injuries caused by the alleged negligence of its ambulette attendant, in causing or permitting a wheelchair-bound patient to fall down a flight of stairs inside her home since the accident was not related to the use of the appellants ambulette (see Elite Ambulette Corp. v. All City Ins. Co., 293 A.D.2d 643, 740 N.Y.S.2d 442)." Id. at 746, 773 N.Y.S.2d 580.
Hence, most New York State court decisions have held that, in order for coverage under an automobile insurance policy to apply to a person being transported by ambulance who is injured prior to boarding or after removal from the ambulance, the injury must be a result of an act or omission related to the use or operation of the ambulance. Such a determination is dependent upon the specific facts and circumstances of each case.
For further information you may contact Associate Attorney Sally Geisel at the New York City Office.
1 N.Y. Ins. Law § 5102(b) (McKinney 2000) defines first-party benefits, in relevant part, as: payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle . . . . N.Y. Ins. Law § 5102(a) (McKinney 2000) defines basic economic loss. Generally speaking, basic economic loss provides up to fifty thousand dollars of coverage per person for, among other costs, medical expenses and loss of earnings, but not pain and suffering. Under the no-fault law, a covered person may not bring a tort cause of action against another covered person except to recover economic loss in excess of $50,000, or for pain and suffering where the plaintiff suffers a serious injury as defined by N.Y. Ins. Law § 5102(d) (McKinney 2000).
2  See also N.Y. Comp. Codes R. & Regs. tit. 11, § 60-1.1(a) (2003) (Reg. 35-A) for mandatory provisions in an automobile liability insurance policy, which requires coverage arising out of the ownership, maintenance, use or operation of a motor vehicle.