Non-EDVA Case of the Month (July)


On June 25, 2019, the Second Circuit heard oral arguments that might cause flashbacks to the first year of law school for most lawyers.  In 1958, H.L.A. Hart posed a hypothetical in a Harvard Law Review article that has been repeated countless time in law school classrooms.  If a legal rule forbids you to take vehicles into a public park, what exactly is prohibited from entering the park?  Are bicycles, roller skates, toy automobiles, and airplanes included?  What about an ambulance during an emergency?

The thorny hypothetical issue of what is a "vehicle" is a reality in 1070 Park Avenue Corporation v. Fireman's Fund Insurance Company, Case No. 2018cv1887 (2nd Cir).  A luxury apartment complex in New York City ruptured a gas line when a recycling bin was brought into the basement and struck a gas meter.  The cost to repair the damage and get the gas turned on cost more than half a million dollars.  The all-risk insurance policy for the building had a "Gas Systems Endorsement" that excluded coverage for losses caused by the testing of gas lines.  The exclusion had an exemption if the losses resulted from certain causes, including "aircraft or vehicles."  Thus, if a vehicle caused the damage, it was covered by the insurance policy.

The district court rejected the argument that because the recycling container had wheels and was used to transport the recycling materials, it, therefore, met the Black's Law dictionary definition of "any moving support or container fitted or used for the conveyance of bulky objects; a means of conveyance."  Instead, the district court concluded on summary judgment that the policy had to be read holistically, and in this context, the term "vehicle" was not broad enough to cover this recycling bin.  The district court's opinion can be found here and at 1070 Park Ave. Corp. v. Fireman's Fund Ins. Co., 313 F.Supp.3d 528 (2018).

The Second Circuit expressed skepticism that the policy covered a recycling bin as a vehicle but engaged in great questioning about whether a cart, or wheel barrel, or motorized recycling bin would meet the definition.  As we await the decision, you can listen to the oral argument here.

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