Defendant Hartford Fire Insurance Company (Hartford Co.) moves for an order, pursuant to CPLR 3212, dismissing the complaint of plaintiffs Jesus Rosado and Jacqueline Rosado on the ground that plaintiff Jesus Rosado was not an insured under Hartford Co.'s Supplementary Uninsured/Underinsured Motorist Endorsement and was not "occupying" the insured vehicle at the time of the accident.^[FN1] The plaintiffs oppose Hartford Co.'s instant motion for summary judgment and cross-move for an order, pursuant to CPLR 3212, granting them summary judgment on the issue of liability and setting the matter down for an assessment of damages and, in addition, pursuant to 11 NYCRR 60-2.3, deeming Hartford Co. to have consented to an offer of settlement in the underlying action in the amount of $25,000.

The instant action is one for uninsured motorist benefits sought by the plaintiff in connection with an accident which occurred on May 13, 2004 when plaintiff, while standing outside of the truck he utilized for his job making deliveries, was struck by a box truck and injured. Subsequent to the accident, Countrywide Insurance, the carrier for the box truck's owner, tendered its full policy of $25,000 to plaintiff. Thereafter, in lieu of filing a demand for arbitration, plaintiff filed the instant lawsuit seeking to recover underinsured motorist benefits under the SUM endorsement of the policy issued by Hartford Co. to plaintiff's employer, Windmill Distributing Company, LP, doing business as Phoenix Beverages, Inc. (Phoenix), which insured the truck plaintiff utilized to make [*2]deliveries. The Hartford Co. Policy provides underinsured motorist benefits up to $1 million to the "insured" and "any other person occupying a motor vehicle insured for SUM under this policy."

At his deposition, plaintiff testified that he was employed by Phoenix on the date of the accident. His job duties at that time consisted of driving a beer truck and distributing beer products to various establishments such as bars and beer distributors. On the date of the accident, he traversed the delivery route to which he had been assigned for at least a week.

He testified that the first stop along his route on that day was the Europa Bar located on Meserole Avenue in Brooklyn, New York. He was accompanied by a co-worker who rode as a passenger in the subject delivery truck and would assist plaintiff in delivering the beer products at each stop along the route.

The beer products to be delivered were located in 12 separate bays in the rear of the truck, 6 on either side of the truck. The bays were accessed via six separate gates, which would go up and down on either side of the truck. There was no access to the bays at the very rear of the truck. The truck itself was about 25 to 30 feet in length.

Plaintiff stated that when he arrived at the Europa Bar, he initially parked adjacent to a bus stop on the right side of Manhattan Avenue, south of its intersection with Meserole Street. After parking, he shut off the ignition and exited the truck after putting on the hazard lights. He removed cases of beer from the third bay on the driver's side of the truck, which faced the moving lanes of traffic, and placed the cases onto a hand truck. He closed the door to the bay and proceeded to transport the cases in his handtruck to the corner of Meserole and Manhattan Avenue to deliver the products to Europa Bar. At the Europa Bar, he took the cases of beer off the handtruck and placed empty cases on the handtruck to take back to the delivery truck.

When he arrived at the delivery truck, he unlocked the third bay, raised the gate, placed the empty cases on the street, unloaded full cases from the truck, placed the full cases on his hand truck, and then proceeded to load the empty cases into the third-bay. He closed the gate to the third bay and locked it.

Plaintiff testified that upon his return to the delivery truck, he encountered a police officer who asked him to move the truck because he was parked illegally at a bus stop. He moved the truck in the same direction down Manhattan Avenue and parked in front of a fire hydrant. When he exited the truck he again shut off the engine and turned the hazard lights on. He stated that he then walked with his co-worker, each of them moving various beer products on their handtrucks, as they proceeded back to the Europa Bar.

After making his second delivery to Europa Bar, he wheeled the hand truck back to the driver's side of the delivery truck. He proceeded to open the locked third bay of the truck so that he could place within it the empty cases of beer which he had retrieved from the Europa Bar. At the time of the accident, he had not yet placed any of the empty cases from the hand truck in the bay of the delivery truck. He was looking into the third bay of [*3]the truck when he was struck by the box truck and his hands were maneuvering the empty cases already located in the third bay of the truck. He was not leaning into the bay very much because there were many cases of beer on the truck and he did not have to lean to reach them.

He further testified that approximately 10 minutes passed from the time that he exited the subject vehicle after moving to the fire hydrant location and the time that the accident occurred. He also stated that his co-worker was still in the Europa Bar when the accident occurred. When he was struck by the box truck, plaintiff was pushed approximately 10 to 12 feet and was pinned between his delivery truck and the box truck until he came to a stop lying up against the first bay of the truck on the driver's side.

The SUM endorsement to the subject policy states, in relevant part, that an "insured" thereunder is defined as follows:

(1) You, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse;

(2) Any other person while occupying:

(a) A motor vehicle insured for SUM under this policy; or

(b) Any other motor vehicle while being operated by you or your spouse.

The term "occupying" is defined pursuant to the subject SUM endorsement as "in, upon, entering into, or exiting from a motor vehicle."

In support of its motion for summary judgment dismissing the plaintiffs' complaint, Hartford Co. argues that the plaintiff was not an occupant of the subject insured delivery truck at the time his accident occurred. Rather, Hartford Co. contends that plaintiff already had exited the vehicle in question completely and was absent from said vehicle for a substantial duration of time in the course of delivering beer to the Europa Bar and transporting empty beer cases back to his delivery truck via handtruck. Accordingly, Hartford Co. maintains that the plaintiff's momentary contact with the insured vehicle for the purpose of depositing empty beer cases into a bay at the rear of the truck could not be construed as his being either "in, upon, entering into, or exiting from a motor vehicle" when the subject accident occurred.

In support of his opposition to Hartford Co.'s motion for summary judgment and his own motion for summary judgment on the issue of liability, plaintiff submits an affidavit which states, in relevant part, the following:

On May 13, I was driving a truck owned by my employer, [Phoenix] to make beer deliveries to various customers of Phoenix. I parked my truck near the Europa Bar which was my first stop. My departures from my truck to make deliveries to the Europa Bar were temporary and brief. I had every intention to return directly to my truck, since I had t use my truck to make deliveries to other customers. [*4]

I was out of my truck for a total of ten minutes on the second round of deliveries to the Europa Bar. I then returned directly to my truck as I was moving empty beer cases around to make room in the truck's third cargo bay. I was actually in the vehicle in that while my feet were on the street, I was leaning into the bay and my hands and part of my upper body were in the truck.

As I was making room within the truck's bay to place empty cases of beer inside, I was suddenly and without warning struck in my back by a box truck. My body was pushed forward and I was crushed between the box truck and my truck.

(Original paragraph numbering omitted).

Accordingly, plaintiff contends that he "was occupying' his truck at the time of his accident in that (I) he was leaning into the cargo bay of the truck at the time of the accident; and (ii) his nexus with the truck had not been terminated."

In addition, plaintiff argues that Hartford Co. should be estopped from denying SUM coverage to him on the ground that it failed to serve a disclaimer with respect to plaintiff's claim for such benefits. Plaintiff also maintains that Hartford Co. should be deemed to have consented to the settlement of the underlying claim between plaintiff and the insurer for the third-party tortfeasor for $25,000, since plaintiff's counsel notified Hartford Co., pursuant to 11 NYCRR 60-2.3, that Countrywide Insurance Company, the insurer for the third-party tortfeasor, had tendered its full policy limit of $25,000 in full and final settlement of plaintiff's claim against such third party, and said counsel failed to receive a response form Hartford Co. within 30 days of such notice.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Piccio, 180 AD2d 734, 735 [1992]). Once the movant has established his or her prima facie case, the party opposing the motion bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 626 [1991]). Stated differently, "the plaintiff must establish the existence of material facts of sufficient import to create a triable issue" (Shaw v Time-Life Records, 38 NY2d 201, 207 [1975]). In addition, the evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 AD2d 129 [1991]), it is a drastic remedy that will [*5]only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 AD2d 658 [1992]).

The court finds that sufficient questions of fact exist with respect to whether plaintiff was "occupying" the subject vehicle at the time of his accident to support the denial of summary judgment to both parties. In the seminal case construing the parameters of the term "occupying" as it is used in SUM endorsements, Matter of Rice v Allstate Ins. Co., 32 NY2d 6, 11 [1973], the Court of Appeals held that "the status of passenger is not lost even though he [or she] is not in physical contact with [the vehicle in question], provided there has been no severance of connection with it, his [or her] departure is brief and he [of she] is still vehicle-oriented with the same vehicle." In addition, the term "occupying" in this context "has long received a liberal interpretation" (Matter of Travelers Ins. Co. [Youdas], 13 AD3d 1044, 1045 [2004]; see also Rowell v Utica Mutual Ins. Co., 77 NY2d 636, 639 [1991][noting that "[t]he term ["occupying"] has received a liberal interpretation because of the expansive definition in the [controlling] statute [Insurance Law § 3420 (f) (3)]] and in standard policy endorsements"]). However, it has been recognized that "[m]ore than a mere intent to occupy a vehicle is required to alter the status of pedestrian to one occupying' [the subject vehicle]; and this is particularly so where there has been no previous passenger-oriented status (Matter of Rice, 32 NY2d at 11).

Accordingly, courts generally have not considered an individual to be occupying a vehicle where said individual had demonstrably severed his or her connection to the vehicle in question at the time of the accident and, although intending to return to said vehicle, had not yet entered, or attempted to enter, same (see Faragon v American Home Assurance Co., 52 AD3d 917, 917-918 [2008][reversing denial of summary judgment to insurer where it determined that plaintiff, who was struck by a hit and run driver as he stood in the street after unloading construction equipment from the tractor-trailer owned by his employer, was not an occupant of the tractor-trailer in question as he was no longer "vehicle-oriented" at the time of the accident, his absence from said vehicle was not intended to be brief, and he was in the midst of instructing a lessee with respect to the use of the delivered equipment when the accident occurred]; Matter of Coregis Ins. Co. v McQuade, 7 AD3d 794, 795 [2004], lv denied 3 NY3d 605 [2004][reversing denial of petition for permanent stay of underinsured motorist arbitration where the court determined that the respondent, a sanitation worker who was injured while waiting near the curb for his sanitation truck to return and pick up the garbage he had collected, was not an occupant of said truck when the accident occurred since he was not in the immediate vicinity of the truck at the time and could not be deemed to have been entering the truck merely because he was waiting for it to arrive and intended to return to same]; Matter of Coregis v Miceli, 295 AD2d 511, 511 [2002][affirming grant of petition to permanently stay underinsured motorist arbitration where the respondent was struck while directing traffic as the fire truck he had exited was being garaged and, therefore, was not [*6]an occupant of said vehicle]; Matter of Travelers Ins. Co v Wright, 202 AD2d 680, 680-681 [1994][affirming grant of permanent stay of arbitration where it determined that appellant, who was struck by another car after she had gathered her belongings, exited her disabled vehicle and was in the process of crossing the street to return to her home, merely intended eventually to return to her broken-down vehicle, was walking away from same to return home when the accident occurred and, therefore, was not occupying the vehicle at that time]; Matter of State Farm Automobile Ins., 160 AD2d 1009, 1010 [1990][affirming grant of petition to stay underinsured arbitration where it determined that respondent, who was injured after he had finished a repair job, deposited his tools in the back of a van owned by his employer and was walking around the van to the driver's side door, was not occupying the vehicle at the time of the accident since he had not yet reached the locked driver's side of the subject van, his departure from the van was not incidental to some temporary interruption of the journey of the vehicle and his mere intent to re-enter the vehicle did not alter his status from pedestrian to occupant]).

However, where the facts support an interpretation that a sufficient unbroken nexus existed at the time of the accident between the alleged occupant and the subject vehicle and the injured party remained ostensibly "vehicle-oriented" when said accident occurred, courts consistently have determined that the party could be construed as "occupying" the subject vehicle for purposes of SUM coverage (see Youdas, 13 AD3d at 1045 [reversing grant of insurer's petition to stay arbitration where it determined that the respondent was occupying the subject vehicle at the time of the accident since he had just exited the vehicle, was in the process of unloading the vehicle to make a delivery, had not yet severed his connection with the subject van and was still vehicle-oriented at the time he was struck by another vehicle]; Matter of Nassau Ins. Co. v Maylou, 103 AD2d 780, 780 [1984][reversing grant of insurer's application for a permanent stay of arbitration based upon its finding that the respondent was struck after exiting his taxicab in order to exchange credentials with the driver of a vehicle with which he had just had a minor collision and, therefore, his departure was occasioned by a temporary interruption in his journey, he remained in the immediate vicinity of the vehicle and had every intention to return to his cab after the exchange of credentials was completed]; State Wide Ins. Co. v Murdock, 31 AD2d 978, 978 [1969], affd 25 NY2d 674 [1969][ordering arbitration to proceed as between respondents and determining that the injured party was "occupying" the subject vehicle at the time of the accident in question where said party was a passenger in a stalled panel truck, the operator of the truck had exited from the vehicle in order to lift the hood and attempt to re-start the engine and the injured party thereafter alighted form the truck to walk to the front of same and was struck by a hit and run driver four or five seconds after he left the vehicle]).

In addition, although the majority of the case law cited to by the parties and relied upon by the court concerns instances where the question of occupation of the subject vehicle revolves around that portion of the definition of "occupying" which refers to the [*7]"entering into, or exiting" from the vehicle, the court notes that said definition also encompasses situations where the injured party could be said to be found "upon" the vehicle in question. There is a dearth of case law addressing this aspect of the definition. However, this court is bound to address the issue as it is required to interpret contracts, such as the one at bar, so as to give meaning to all of their terms (see 150 Broadway NY Assocs., L.P. v Bodner, 14 AD3d 1, 4-5 [2004]).

In Lokos v New Amsterdam Casualty Co., 197 Misc 40 [1949], affd 197 Misc 43 [1950], an early case addressing the issue of the meaning of the word "upon" when used in relation to an individual's use of an automobile, the court considered a case where the plaintiff stopped his vehicle at the side of the highway, alighted from same and proceeded to the front of the car to investigate a sound emanating therefrom. He discovered that his bumper had fallen to the pavement and was hanging on one side and during the act of tying the bumper so that he could proceed and "while leaning over the car with the bumper in his hands," he sustained the injuries which formed the basis for his claim. The court opined that "[t]he sole question presented for determination [was] [d]id the plaintiff's injuries arise out of the use of the automobile while he was upon it?" (id. at 41). In finding that the subject injuries did arise out of plaintiff's use of the vehicle while "upon" it, the court employed the following reasoning:

An examination of the word upon' in the particular context in which it is found indicates its meaning related to the idea of use of the automobile. Such meaning is exclusive of other risks intended to be covered by the words entering' and alighting,' during the course of which acts a person could be said to be upon the automobile. Can it be said that the insurer attached to the word upon' a meaning so narrow as to encompass only such cases in which the entire weight of a person's body was resting upon or supported by the vehicle? Considering the usual positions of a person in relation to a car in use and the fact that other enumerated risks include acts of being in the automobile in the sense of resting upon or being supported by it, it is reasonable to give the term a broader meaning including some acts in which the person is in contact with the car. This is not to say that mere contact is sufficient; the facts in this case go beyond that. It would not be uncommon of speech to say that plaintiff had his hands upon the bumper of the car at the moment of the accident.

In a more recent case, Matter of Colonial Penn Ins. Co. v Curry, 157 Misc 2d 282 [1993], the court determined that the respondent was not occupying the subject vehicle where the respondent was leaning in the driver's side of said vehicle to speak with an occupant. One of his feet was resting on the runningboard of the vehicle and the other foot was planted on the ground. A second vehicle backed up and struck the subject vehicle causing injury to the respondent. In holding that respondent was not occupying the vehicle at the time, the court determined the following:

The general language of the Court of Appeals in Matter of Rice [case] is helpful in [*8]making a determination in this case. The Court of Appeals . . . stated [in Rice] that [m]ore than a mere intent to occupy a vehicle is required to alter the status of a pedestrian to one of "occupying" it; and this particularly so where there has been no previous passenger oriented status" [32 NY2d at 11]. The majority of the cases are concerned with a person who just recently alighted or was about to enter a motor vehicle. With respect to these cases, the court's decision as to whether the person is covered depends on whether that person was passenger-oriented. In our set of facts, such a finding cannot be made, Rather, all we have here is mere contact, a stepping upon the vehicle. There is no previous passenger-oriented status nor is there any indication that he was about to become a passenger in the truck. Any contact that [respondent] had with this vehicle was unrelated to its operation as a vehicle and was not passenger-oriented.

(id. at 287).

In the instant case, the court finds that a triable issue of fact exists as to whether plaintiff was sufficiently "vehicle-oriented" at the time of his accident such that he could be construed to have been upon" the vehicle when said accident occurred. The deposition testimony proffered by plaintiff (which, contrary to Hartford Co.'s contentions, does not differ demonstrably from his affidavit submitted in support of the instant cross motion) demonstrates that while on his delivery route, he was not only constantly alighting from and entering back into his delivery truck, but also had frequent contact with the truck since he was required to open and shut the bays in the rear of the truck and remove various beer products from, and load them into, such bays during the course of his deliveries. He was struck by the subject box truck after he had unlocked the third bay of the truck and was leaning slightly in to the bay as he moved empty beer cases within the vehicle. As he was struck, he was crushed against his delivery truck due to his proximity thereto and ultimately ended up pushed up against the first bay of said vehicle. Given the liberal interpretation generally afforded to the term "occupying," the drastic nature of the remedy of summary judgment and the requirement that this court view the evidence proffered in the light most favorable to the non-movant, the court cannot determine, as a matter of law, that plaintiff was not occupying the subject vehicle at the time of his accident. Rather, given his prior occupancy in the vehicle, his intent to return to same and his arguably vehicle-oriented activity in opening and shutting the truck bays and loading and unloading same at the time of his accident, operations which by their very nature could be deemed intrinsic to the operation of a delivery truck, the court finds that questions of fact exist with respect to plaintiff's so-called "occupant" status which constrains the court from granting summary judgment to either party.

In addition, the court finds that the plaintiffs are also not entitled to summary judgment due to Hartford Co.'s alleged failure to disclaim coverage. "It is well settled that an insurance company will be estopped from disclaiming coverage based on an exclusion in a policy where it has delayed unreasonably in doing so" (Farmers Fire Ins. [*9]Co. v Brighton, 142 AD2d 547, 548 [1988]; accord Mount Vernon Fire Ins. Co. v Unjar, 177 AD2d 480, 481 [1991]). However, as recognized by the Court of Appeals in Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185 [2000]:

Disclaimer pursuant to section 3420(d) [of the Insurance Law] is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. By contrast, disclaimer pursuant to section 3420(d) is necessary when denial of coverage is based on a policy exclusion without which the claim would be covered.

[Citations omitted].

Here, coverage only exists for plaintiff under the subject SUM endorsement to the extent he can demonstrate that he was occupying the subject vehicle at the time of the accident. Accordingly, as he is not a named insured, nor was insurance contemplated for him as an individual in any other capacity aside from his putative "occupant" status, any disclaimer by Hartford Co. would not be based upon a policy exclusion without which the claim would be covered, but rather would refer to coverage that will only exist if and when plaintiff is determined to have been an occupant of the insured vehicle. Accordingly, Hartford Co. was not required to disclaim coverage with respect to the plaintiffs' claim for underinsured benefits pursuant to the subject SUM coverage endorsement.

Finally, that portion of plaintiff's motion which seeks an order deeming Hartford Co. to have consented to the offer of settlement by the third party tortfeasor's insurer is denied. Pursuant to the subject SUM endorsement, the issue of settlement with a tortfeasor's insurer is addressed as follows:

10. Release or Advance

In accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such after thirty calendar days actual written notice to us, unless within this time period we agree to advance such settlement amounts to the insured in return for the cooperation of the insured in our lawsuit on behalf of the insured.

Courts are obligated to construe all provisions of a contract in accordance with their plain and ordinary meaning (see Edwards v Poulmentis, 307 AD2d 1051, 1052 [2003]). It is undisputed that plaintiff's counsel informed Hartford Co. in writing with respect to the tender of the policy limits by the third party tortfeasor's insurer and requested that Hartford Co., within 30 days, either furnish plaintiff with written consent to said settlement advance the settlement amount of $25,000 to plaintiff in return for his [*10]cooperation in its lawsuit on his behalf. However, the provision governing such settlements unequivocally refers to an "insured" under the subject SUM endorsement. As questions of fact currently exist as to whether the plaintiff should be afforded the status of an insured under the SUM endorsement and the subject settlement provision contained therein, it would be premature for this court to determine that said provision currently applies to the tender by the third party tortfeasor's insurer of $25,000 in settlement of plaintiff's personal injury claim or Hartford Co.'s consent, or lack thereof, to same.

As a result, the motion and cross motion of the plaintiffs and Hartford Co. are denied in their entireties.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S.C.