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Workers Retrieving Materials from Van not entitled to UIM Benefits (NJ)

December 17, 2009

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It is often a very close factual question as to whether a party is deemed to “occupy” a vehicle for the purpose of establishing Uninsured Motorist coverage. Recently, the Appellate Division of New Jersey was called upon to render such a determination in <i>Ortiz v. Zurich.</i>
The claimant parked his work van, unloaded materials, and brought the materials to the job site across the street. Realizing he left something inside of the van, claimant began to re-cross the street to head back to the van when he was struck by an uninsured vehicle. Claimant filed for benefits under the van’s uninsured motorist provision, and when the claim was denied, he filed suit against the insurer. The trial court granted the insurer’s motion for summary judgment and held there was no coverage.
The Appellate Court found that in order to find a party was “occupying” an insured vehicle, as defined by the policy, a claimant needs to establish a “sufficient nexus” between the vehicle and the accident. The Court looked to comparable fact patterns, and held that there was a sufficient nexus in those situations where a claimant temporarily exited an insured vehicle to perform a quick act – and left the engine running. But here, where the claimants had already parked and exited the vehicle -- and was not in close contact with the vehicle at the time of the accident -- the connection between the accident and the vehicle was “merely coincidental” and was insufficient to constitute “occupying.” The Court affirmed the trial court’s decision of no coverage.


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