Echevarria v United Airlines, Inc.

[*1] Echevarria v United Airlines, Inc. 2006 NY Slip Op 50955(U) [12 Misc 3d 1158(A)] Decided on May 22, 2006 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2006
Supreme Court, Kings County

Miguel Echevarria, Petitioner,

against

United Airlines, Inc., Respondent.



3424-06

Herbert Kramer, J.

Is the luggage tug that struck the petitioner as he was unloading luggage in a British Airways Terminal "bag room" a motor vehicle?

Petitioner, an employee of United Airlines, Inc., was injured inside a British Airways Terminal when a motor vehicle/ tug owned by British Airways, PLC struck the luggage cart in which he was working. Petitioner settled with British Airways.[FN1] The compensation carrier consented to this settlement but seeks to enforce its workers compensation lien. Petitioner asserts that the proceeds of this settlement should not be subject to a lien because the statutory scheme precludes the assertion of liens upon recoveries for injuries caused by the use or operation of motor vehicles.

A motor vehicle is defined as "[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power . . . " Vehicle and Traffic Law 125. A "public highway" is defined as "[a]ny highway, road, street, avenue, alley , public place, [*2]public driveway or any other public way." Vehicle and Traffic Law 134.

This definition can be applied to two very different types of motorized vehicles. One category involves vehicles such as cars or trucks that are designed primarily to transport people and cargo along the highways. The second category defines certain specialty vehicles such as tractors, plows cherry pickers and the like that are primarily used for other tasks, but which nonetheless are capable of being driven on streets or highways.

Where the vehicle in question is primarily designed to traverse the highways then its location at the time of the occurrence is not dispositive of the question of whether it qualifies as a motor vehicle. Rather Courts have looked to the question of whether the vehicle was operable or capable of being operated. See e.g. Matter of Hall (Royal Ind Ins. Co.), 34 AD2d 1090(the Dept. 1970)(alleged "junk" car undergoing repairs in a shop started and ran into claimant), Matter of Prato (MVAIC), 49 Misc 2d 955 (Sup. Ct. Westchester Co.1966) (unregistered, uninsured car backed up into claimant in the auto body shop); Dupra v. Benoit, 270 AD2d 856(4th Dept. 2000)(inoperable car pushed into the victim) .

Where, as here, the vehicle is a specialty vehicle not primarily designed to be driven on highways, or where some other component of the vehicle was implicated that was unrelated to its use or operation on a highway, then Courts have focused upon how and where the vehicle was being used. See Matter of County of Westchester v. Winstead, 231 AD2d 630(2d Dept. 1996). (bobcat moving along on a sidewalk which is a "public highway" was deemed a "motor vehicle" pursuant to VTL  125). Progressive Cas. Ins. Co. v. Yodice, 180 Misc 2d 863 (NY Sup Court 1999) aff'd 276 AD2d 540(2000). (accident occurred on a ride which was secured to the rear of a motor vehicle and decision turned upon the actual use made of the vehicle as a platform for a ride).

Indeed, the "distinction between the intended design' of a vehicle and its actual use'," has been recognized outside New York. See Alfa Insurance Corp v. Ryals ex rel Wrongful Death Beneficiaries of Ryals, 918 So2d 1260 (Miss. 2005) (where bucket truck performed a defective repair, Court found that although the bucket truck was designed for use on the highway, there was no proof adduced that it was being driven at the time.)State Farm Mutual Auto Insurance Co. v. Graham, No. 3:92-cv-161(B)(D)(N.D. Miss, 1994[unpublished opinion]) (dragster racing on a dirt track road did not trigger uninsured motorist coverage).

This Court's reading of the decisions dealing with specialty vehicles leads it to the conclusion that if those Courts had found that the vehicles in question were actually being driven along a highway at the time of the accident, then they would have deemed them to be motor vehicles as that term is defined in the relevant provisions. See e.g., Matter of County of Westchester v. Winstead, supra, 231 AD2d 630(2d Dept. 1996). There is a public policy basis for this rationale. The motor vehicle laws were intended to control those vehicles that ordinarily and routinely traverse the highways or are capable of doing so in order to insure the safety of drivers and pedestrians. Vehicles primarily engaged in tasks not involving travel upon the highways but which vehicles are capable of being driven on highways will be deemed motor vehicles when they are actually being used in that manner. Otherwise, they will not be held to the strict standards and requirements imposed by law.

The tug in question falls within a category of motorized specialty vehicles whose primary purpose and design is not for travel on public highways but for shuttling baggage between planes [*3]and terminal areas. Petitioner's claim to the contrary that these tugs are customarily driven on public highways within the airport is not supported by any evidence other than petitioner's own unsubstantiated statements. Thus, in order for petitioner to establish that the vehicle that hit him is a "motor vehicle" under the applicable statutes, he must show that the tug that hit him was being operated or driven on a public highway at the time of the accident. The uncontradicted evidence adduced herein demonstrates that such was not the case.

Accordingly, the exclusion provided in Workers Compensation Law 29(1-a) does not apply and the petition for an order determining that the recovery paid to petitioner in the third party action is not subject to a lien is denied. However this court does find that the settlement was consented to and was reasonable in light of the medicals and other information submitted . Accordingly the settlement of the underlying personal injury matter is hereby authorized.

This constitutes the decision and order of the Court.

Dated: May 22, 2006J.S.C. Footnotes

Footnote 1:Petitioner has included pictures of a luggage cart similar to the one in which petitioner was working when he was injured. It is depicted as the familiar sort of curtained rectangular luggage cart on four wheels which has no engine of its own. The British Airways tug which is similar to the tug that injured the petitioner is shown as a tractor-type vehicle with a hitch in the back and what appears to be fork lift like gear in the front. It bears the name British Airways on the side and has a license plate. The British Airways luggage cart and tug are shown parked inside a facility.