The Rogak Report: 03 Jan 2005 ** No Fault - Use and Operation **
- INJURY THAT OCCURS INSIDE VAN WHEN GAS TORCH EXPLODES DURING
UNLOADING DOES NOT QUALIFY FOR NO FAULT BENEFITS
Iavarone v. Lentini et al., (Supreme Court, Nassau County, Index no.
Plaintiff was working for defendant Lentini in the bathtub reglazing
business. Lentini instructed plaintiff to clean the cargo area of
Lentini's van to make room for a mattress. The cargo area of the van
contained blankets, clothes, a gas torch, paint and paint thinners.
While cleaning the van, plaintiff stepped on a gas torch which was
under a blanket. The head of the torch broke off and a spark ignited
the torch, which then ignited the flammable paint thinners and other
materials in the van. Plaintiff sustained severe burns.
Plaintiff sued Lentini for negligence, and Lentini's insurer Allstate
for no-fault benefits.
Allstate moved for summary judgment on the grounds that plaintiff did
not meet the three-prong test set down in MABSTOA v. Gholson, 71
A.D.2d 1004. The Gholson court ruled that in order for an injury to
qualify for no-fault benefits, it must (1) arise out of the inherent
nature of the automobile; (2) occur within the natural territorial
limits of the automobile and the use, loading or unloading must still
be in progress; and (3) the automobile must not merely contribute to
the injury but must actually produce it.
The Court found that this plaintiff satisfied the first and second
prongs of the Gholson test but not the third. The accident happened
inside the van, during unloading, so it was within the natural
territorial limits of the automobile. It cannot be said as a matter
of law that the accident did not arise out of the inherent nature of
this van, which was used in the tub reglazing business, so Allstate
was not entitled to summary judgment on that point.
However, held the Court, "Allstate is correct in its contention that
the vehicle did not produce plaintiff's injuries. Although the
vehicle may have contributed to cause the condition that produced the
plaintiff's injuries, it was not the cause in and of itself of the
injuries." As a result, plaintiff's claims against Allstate for no-
fault benefits were dismissed.
Comment: Allstate also moved to dismiss plaintiff's claims on the
ground that he was working at the time of the accident and therefore
workers compensation benefits, and not no-fault benefits, should
apply. However, the Court held that Allstate did not submit
sufficient evidence to prove that plaintiff was cleaning out the van
in the course of his employment. It would seem to me that this was a
relatively simple matter that could have been established in EUO or
deposition testimony, but for whatever reason the facts were not