In Samarskaya v. MVAIC, Judge Bluth of the New York Supreme Court, New York County denied defendant Motor Vehicle Accident Indemnification Corporation’s (MVAIC) motion for summary judgment. Plaintiff alleged that while riding her bicycle, she was struck by an opened rear passenger-side door of a taxi, which then drove off.
Under Article 52 of the Insurance Law, “a ‘qualified person’ whose death or bodily injury arises from a motor vehicle accident in this state, and who has a cause of
action against an owner or operator of an uninsured vehicle, or a cause of action against a person whose identity is unascertainable, may file a notice of claim with MVAIC.”
In moving for summary judgment, MVAIC asserted (without citation to relevant authority) that it “does not provide coverage or indemnification for injuries produced by the negligence of the back seat passenger-patron that are outside the covered use and operation of a commercial vehicle.”
The court rejected defendant’s reliance on the Court of Appeals’ decision in Kohl v. American Tr. Ins. Co., 15 NY3d 763. Although Kohl also involved a cyclist “doored” by a taxi passenger door,
[t]he legal issue in Kohl involved an insured operator and a written automobile liability policy. Kohl is inapplicable here, where the owner of the taxi is not known and there is no insurance policy to interpret; the Court interpreted the word “operation” in the context of the policy, not the word “use” in the statute governing MVAIC.
The court concluded:
[T]he word “use” is not interchangeble with the word “operate”; it is more expansive. The very purpose of a taxi is to pick up and discharge passengers-to do that, the doors have to be opened and closed. Whether the owner is using the taxi to make money or the passenger is using the taxi to take a ride, a passenger opening the door when exiting involves the “use” of the taxi. Although MVAIC asserts that the act of opening the door was outside the use and control of the operator, that is not the proper inquiry. The question is whether plaintiff’s injuries arose out of the use of the vehicle. Opening and closing the passenger doors is part of the use of a taxi. Thus any injuries caused by [the taxi passenger] by opening the door and making contact with plaintiff arise “out of the …. use of a motor vehicle”. According[ly], MVAIC has not demonstrated that it is entitlement ‘to summary judgment dismissing the complaint as a matter of law.