BOYSON, KAREN v. KWASOWSKY, IRENE
CA 14-01228
| N.Y. App. Div. | May 8, 2015Background
- Plaintiff was a passenger on a motorcycle operated by her husband, who collided with a pickup truck, causing the motorcycle to drop and strike plaintiff.
- The accident occurred while both vehicles were on Route 49; the pickup was driven by Bohdan Kwasowsky and owned by Irene Kwasowsky.
- Two vehicles were insured under Kemper; the pickup under Farm and Family; plaintiff sought first-party no-fault benefits under both policies.
- Both policies excluded coverage for any person while occupying a motorcycle, defining occupancy as in or upon or entering into or alighting from.
- The trial court granted summary judgment denying coverage under both policies; it held plaintiff remained an occupant throughout the incident.
- The appellate court held the plaintiff was occupying the motorcycle for the entire, continuous sequence of events and thus not entitled to coverage, but modified the judgment to declare rights on the third claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff remained an occupant of the motorcycle during the entire incident | Boyson remained occupant from start to finish | Plaintiff ceased occupying after ejection and became pedestrian | Occupant throughout; no first-party benefits |
| Whether the no-fault exclusions align with Insurance Law 5103(a)(1) | Exclusion should not bar pedestrian injuries | Exclusion consistent with statute and regulations | Exclusions applicable; no first-party benefits |
| Whether there were two accidents or a single continuous accident | Two distinct accidents occurred | Single continuous accident; plaintiff remained vehicle-oriented | Single accident; plaintiff remained an occupant |
| If entitlement is denied, what is the proper remedy | Declare Kemper and Farm and Family owe benefits | Dismiss claims for no-fault benefits | Judgment modified to declare no first-party benefits; complaint reinstated to extent |
Key Cases Cited
- Colon v. Aetna Cas. & Sur. Co., 48 N.Y.2d 570 (New York Court of Appeals 1980) (occupant defined by ordinary meaning; not occupant of own vehicle for no-fault)
- Perkins v. Merchants Mut. Ins. Co., 41 N.Y.2d 394 (New York Court of Appeals 1977) (motorcyclists treated as pedestrians before 1977 amendment)
- Carbone v. Visco, 115 A.D.2d 948 (2d Dep't 1985) (interpretation of occupancy in no-fault context)
- Innes v. Public Serv. Mut. Ins. Co., 106 A.D.2d 899 (4th Dep't 1984) (occupant/coverage considerations in no-fault)
- 20th Century Ins. Co. v. Lumbermen’s Mut. Cas. Co., 80 A.D.2d 288 (2d Dep't 1981) (occupant interpretation in no-fault context)