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Volunteering to fix a flat tire on his boss’s truck on an icy driveway landed Ernest Arians in the hospital and in the middle of dispute into whether his boss’s homeowner’s or auto insurer should pay for his injuries. The fact that Arians hit his head on the truck’s bumper jack was the clincher for an appeals court, which ruled Tuesday that coverage lay with the auto insurer because of the substantial nexus the injuries and the vehicle’s repair. The Appellate Division, in Penn National Insurance Company v. Costa, A-5162-06, found a homeowners policy’s exclusion of bodily injury “arising out of” the maintenance, operation, ownership, or use of motor vehicles owned or operated by insureds “a broad catch-all designed to include all proper uses of the vehicle not falling within the term ‘ownership and maintenance.’” At the time of the accident, Frank Costa owned Fleet Truck and Trailer Repair, located next to his home. Arians, a Fleet mechanic, was on lunch break when he walked over to Costa’s driveway. As Costa declined the offer of help, Arians slipped on the icy driveway and struck his head on the jack handle, lapsing into a coma. He suffered multiple face, head and skull fractures, required surgery, developed blood clots and was left with cognitive and mental problems. Arians’ auto carrier, Penn National Insurance Co., provided him with personal injury protection benefits and filed a subrogation suit to recover those payments from Costa, his business and his homeowner’s insurer, Farmers Insurance Co. Farmers then sued Arians and Costa’s commercial auto insurer, Gulf Insurance Co., as third-party defendants and sought a declaration that it did not provide coverage. Arians also sued Costa. On May 24, 2007, Ocean County Superior Court Judge Edward Oles held that coverage lay with Farmers because the accident resulted from negligent accumulation of ice and snow. Arians settled his suit against Costa for $400,000 and a consent judgment was entered against Farmers, which paid it and then pursued its appeal, which turned on the language of the homeowners policy. Judge Jack Lintner, joined by judges Ronald Graves and Jack Sabatino said that “the phrase ‘arising out of’ must be interpreted in a broad and comprehensive sense to mean ‘originating from’ or ‘growing out of’ the use of the automobile” and that, when considering use, there need only be a showing of “a substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise.” “It is undisputed . . . that Costa was maintaining the vehicle at the time of the accident, and Arians approached with the intention to help Costa. Moreover, Arians’ injuries were the direct consequence of his head hitting the protruding part of the bumper jack, which was being used for the vehicle’s maintenance,” the judges wrote. “Arians’ injuries . . . were not solely related to the existence of ice and snow but directly connected with the maintenance of the Ford pickup, thus coming within the exclusion in the homeowner’s policy, and meeting the required substantial nexus.” Gulf’s lawyer, John Maucher of Mintzer Sarowitz Zeris Ledva & Meyers in Cherry Hill, declines to comment. Farmers’ lawyer, Anthony Pasquarelli of Sweet Pasquarelli in New Brunswick, did not return a call.

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