An issue that frequently arises in the context of insurance coverage cases involves the definition and application of the phrase “use or operation”—a phrase that appears in several statutes pertaining to motor vehicles,[1] as well as in many insurance policies—most notably, the coverage sections of automobile liability insurance policies, and the exclusionary provisions of homeowners’ policies.[2] The recent appellate decision in Nationwide Mutual Ins. Co. v. Oster, 193 A.D.3d 951 (2d Dept. April 21, 2021), has brought this issue into focus once again, this time appearing to expand the meaning and breadth of the phrase beyond all prior limitations.

Background

Over the years, the courts have recognized that the phrase “use or operation” does not have a consistent or uniform meaning. As a result, seemingly inconsistent decisions and/or decisions with strong dissenting opinions have been the norm in cases involving this issue. As aptly stated by Justice Victor G. Grossman (in the lower court decision in Nationwide Mutual Ins. Co. v. Oster, 60 Misc.3d 1208[A] (Sup. Ct. Putnam Co. 2018)), “The ‘plain language’ and meaning of ‘use’ and ‘operation’ encompasses a broad range of activity. The tendency ‘to know it when one sees it’ (to paraphrase Justice Stewart in another context) yields a long line of decisions that reflect varied forms of human behavior, but provide little guidance where there are close questions of fact.”

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