An insurer may be liable for an underinsured motorist claim in a case where the insured’s pit bull poked its head out the window of an illegally parked vehicle and bit a pedestrian, a judge has held in an apparent first impression case that turned on the definition of the word “use.”

Acting Supreme Court Justice James Pagones in Dutchess County (See Profile) rejected Allstate Insurance Co.’s argument that the car was not in “use” within the meaning of the policy. Rather, Pagones found, the insured’s “use” of the vehicle to transport his pet fit within the policy confines, even though the car was parked. The judge noted that neither side was able to point to a single on-point New York case.

Allstate Insurance v. Reyes, 5722/12, began in October 2011, when Michael Kazimer parked his car in a no-parking zone at a gas station/convenience store, leaving his pet pit bull in the car with the rear window partially open. Records show that while Deborah Reyes was walking by Kazimer’s vehicle, the dog reached out and bit her breast.

Kazimer’s insurance company, GEICO, offered to pay the policy limit of $25,000 to settle Reyes’ claim and Reyes advised her own carrier, Allstate, of a potential claim under her underinsured motorist policy. Allstate disclaimed coverage, contending the injury resulted from a dog bite and had nothing to do with the “use” of an underinsured vehicle. Reyes submitted a demand for arbitration and Allstate sought a stay.

In a Dec. 10 decision, Pagones said that while there is apparently no precedent, case law does make clear that it is not necessary for a vehicle to be the proximate cause of an injury to trigger an insurance policy, only that it was “used negligently and that negligence must be a cause of the injury.” Additionally, he said the injury must result from the “intrinsic nature of the motor vehicle as such and the use” of the vehicle must do more than merely “contribute” to the injury.

Here, Pagones said, where the insured was transporting his dog in the car and left a window open enough to permit the canine to stick its head out, Kazimer’s conduct “constitutes the ‘use’ of a vehicle” as the term is used in the Allstate policy.

“Certainly, the use of a vehicle to transport a household pet is now commonplace and the dog would not have been close enough to bite the respondent’s right breast without the use of Mr. Kazimer’s vehicle to haul the dog and Mr. Kazimer’s act of permitting the rear window to remain open,” Pagones wrote. “It is not necessary that the use of the vehicle be the proximate cause of the respondent’s injuries. Rather, this court finds that the use of the vehicle was a proximate cause of the respondent’s injuries.”

Additionally, Pagones rejected Allstate’s argument that Kazimer’s strict liability for the injury caused by his dog precludes a finding that his negligent use of the vehicle caused Reyes’ injuries.

“Mr. Kazimer’s liability for the respondent’s injuries is a distinct issue from whether the respondent’s supplementary uninsured motorist endorsement policy provides coverage for the incident,” Pagones wrote.

Reyes was represented by Stephen Donohue of Bardonia, Rockland County.

Donohue said he was surprised while researching the matter that there were no New York cases directly on point. But he said GEICO, after first disclaiming coverage, inadvertently bolstered his argument by paying the claim under Kazimer’s auto policy.

“I think it is a great decision by the judge,” Donohue said. “It is common practice for people to drive around with dogs in their car and it would seem to me that the auto policy should be applicable.”

Edward Souto of Grogan & Souto in Goshen, Orange County, represented Allstate. He was not immediately available for comment.

@|John Caher can be contacted at jcaher@alm.com.