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The Rogak Report: 03 Jan 2005 ** No Fault - Use and Operation **

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  • Lawrence Rogak
    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,
    Message 1 of 1 , Jan 2, 2005
      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.
      002286/04)

      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
      sufficiently settled.

      Larry Rogak
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