Matter of Merchants Ins. Group v Estate of Geralis
Annotate this CaseDecided on May 10, 2005
Supreme Court, Suffolk County
In the Matter of Merchants Insurance Group and Merchants Insurance Company of New Hampshire, Inc., Petitioners,
against
Estate of Stephanie Geralis, Anthony L. Brown, State Farm Mutual Automobile Insurance Company and Progressive Insurance Company, Respondents.
1892-03
Attorney for plaintiff
Goldberg Segalla LLP
120 Delaware Avenue, Suite 500
Buffalo, NY 14202
Attorneys for defendant
Rosenberg & Gluck, LLP
1176 Portion Road
Holtsville, NY 11742
Shayne Dachs Stanisci Corker & Sauer
250 Old Country Road, 3rd Floor Mineola, NY 11501
Martin, Fallon & Mulle
100 East Carver Street
Huntington, NY 11743
Denise F. Molia, J.
ORDERED, that the petition by Merchants Insurance Group, pursuant to CPLR 7503( c), for an Order permanently staying arbitration of the supplementary underinsured motorist claim of the Estate of Stephanie Geralis, is granted; and it is further
ORDERED, that the cross motion by Progressive Insurance Company, pursuant to CPLR 3212, directing the entry of summary judgment in favor of cross movant and declaring that State Farm Insurance Company is obligated to reimburse Progressive Insurance Company for all sums it has and will pay as a result of the subject accident, is granted.
The underlying action is one in which the decedent, Stephanie Geralis, was fatally injured in a motor vehicle accident on March 13, 2001. At the time of the accident, Stephanie Geralis was a passenger in the 1988 Plymouth Voyager operated by her mother, Maria Geralis. The decedent's father, Ioannis Geralis states that neither he nor his wife, Maria Geralis, were the owner of the Voyager vehicle, instead placing ownership with Anthony Brown. The police accident report also identifies Brown as the owner of the Voyager.
Prior to the accident, it appears that Brown entered into a verbal agreement with Ioannis Geralis, whereby in exchange for certain work to be performed at Brown's house by Geralis, Brown would sign over to Geralis the title for the subject 1988 Plymouth Voyager. As of the date of the accident, Geralis had not performed the work and Brown had not signed over title to the vehicle, although Geralis was in physical possession of the subject vehicle. Inasmuch as the documentary evidence, in the form of a copy of the Certificate of Title issued by the New York State Department of Motor Vehicles, as presented in Exhibit D of the affirmation of Michael V.Buffa, indisputably places ownership of the Voyager with Anthony L. Brown, the Court finds [*2]such certificate of title to constitute prima facie evidence of Brown's ownership of said vehicle. Vehicle and Traffic Law section 2108( c); Aronov v. Bruins Transportation, Inc., 294 AD2d 523, 743 N.Y.S.2d 131.
A Demand for Arbitration dated November 11, 2002 , with respect to a supplementary underinsured motorist claim on behalf of the Estate, was received by Merchants Insurance Group on November 15, 2002. The petitioner then filed the instant petition seeking a stay of the arbitration.
Merchants Insurance Group issued a business auto policy, number CAP9252812, with a policy period of November 8, 2000 to November 8, 2001, to Ioannis Geralis as the named insured. The business type is listed as "individual" and the policy provides coverage for autos owned by the insured that were acquired after the inception of the policy. Said policy provided supplemental uninsured/underinsured motorist coverage in the sum of $300,000.00 .
On November 28, 2001, Progressive offered its full policy of $50,000.00, and on December 18, 2001 the respondent notified the New York State Insurance Department of the same.
The petitioner contends that the decedent, Stephanie Geralis, was an insured under the Merchants Insurance Policy at the time of the accident, and that the vehicle occupied by said decedent was not uninsured at the time of the accident.
The SUM endorsement of the Merchants' policy, under which the respondent is seeking benefits contains a definition of "uninsured motor vehicle" which specifically excludes vehicles "[I]nsured under the liability coverage of this policy." In relevant part, the liability coverage of the Merchants' policy provides:
We will pay all sums an "insured" legally must pay as damages
because of "bodily injury" or "property damage" to which this
insurance applies, caused by an 'accident' and resulting from the
ownership, maintenance or use of a covered "auto."
Maria Geralis also qualifies as an "insured" under the liability coverage of the policy, which includes as an insured "[a]nyone else while using with your permission a covered 'auto' you own, hire or borrow." Accordingly, the liability portion of the policy would provide coverage for the 1988 Plymouth Voyager owned by Brown, but in the possession of, and either borrowed or used by the Geralis family.
The relevant language of the SUM endorsement contained in the policy issued by Merchant to Ioannis Geralis provides:
We, the company, agree with you, as the named insured, in return [*3]
for payment of the premium for this coverage, to provide
Supplementary Uninsured/Underinsured Motorists (SUM)
coverage, subject to the following terms and conditions:
2. Damages for Bodily Injury Caused By Uninsured Motor Vehicles
We will pay all sums that the insured or the insured's legal
representative shall be legally entitled to recover as damages from
the owner or operator of an uninsured motor vehicle because of
bodily injury sustained by the insured, caused by an accident
arising out of such uninsured motor vehicle's ownership,
maintenance or use, subject to the Exclusions, Conditions, Limits
and other provisions of this SUM endorsement.
INSURING AGREEMENTS
1. Definitions
For purposes of this SUM endorsement, the following terms have
the following meanings.
a. Insured
The unqualified term "insured" means:
(1) You, as the named insured and, while residents of the same
household, your spouse and the relatives of either you or your spouse;
(2) Any other person while occupying:
(a) A motor vehicle insured for SUM under this policy; or
(b) Any other motor vehicle while being operated by you
or your spouse[.]
The term "uninsured motor vehicle" means a motor vehicle that,
through its ownership, maintenance or use, results in bodily injury
to an insured . . .
The term "uninsured motor vehicle" does not include a motor vehicle that is:
(1) Insured under the liability coverage of this policy; or
(2) Owned by you, as the named insured, or your spouse residing [*4]
in your household[.]
Inasmuch as the 1988 Plymouth Voyager, which at the very least had been borrowed by Ioannis Geralis, qualifies as a covered "auto" under the provisions of the liability portion of the Merchants' policy, such vehicle, by the definition under the SUM endorsement, is not an uninsured vehicle. However, regardless of who owned the Voyager, SUM coverage is excluded under the express terms of the Merchants' policy.
With regard to the cross motion by Progressive, State Farm has failed to submit any evidence to support the contention that State Farm did not insure the Voyager on March 13, 2001. Specifically, there has been no evidence to establish that Brown formally requested that the subject vehicle be removed from his policy of insurance with State Farm. Nor has any evidence been submitted to establish that State Farm properly and validly canceled its policy for any reason prior to the date of the accident. In fact, the affidavit of State Farm's counsel, Richard L. Woll, concedes that his client has been unable to find "any correspondence from Anthony Brown requesting that the Isuzu vehicle be substituted for the Plymouth vehicle," and that all available documentation has already been submitted. Although reference is made to a letter of Anthony Brown to Liberty Mutual, dated August 16, 2001, advising that he had not been in possession of the Voyager since September 20, 2000, it is notable that such letter is silent with respect to the issue of whether Brown ever requested or intended that the Voyager be removed from the State Farm policy.
It is not claimed that the instant matter is one in which the policy was canceled for non-payment of a premium. The sole issue is whether the vehicle was properly and effectively removed from the policy at the request of the insured. Sheer speculation as to Brown's intention concerning removal of the vehicle from the policy, without admissible evidence of same, is an insufficient basis upon which to deny summary judgment. Nor is an attorney's supposition concerning the appropriate methods of removing vehicles from policies, admissible or evidentiary in the absence of any indication that he/she is a person with knowledge of the facts. (See, Roche v. Hearst Corp., 53 NY2d 767). In the absence of documentation or proof of the basis for the vehicle's removal from the policy, State Farm cannot prevail.
It has not been disputed that Progressive settled the underlying claims against Geralis, within the policy limits, to protect its insured, who would have been defenseless based upon State Farm's denial of coverage and disclaimer of liability. By settling the claim of the other vehicle's driver for less than the policy limits, Progressive also served the interests of both itself and State Farm, who never objected to the terms of the settlements. Under these circumstances, Progressive's payment was not voluntary, and Progressive has a right of equitable subrogation against State Farm. See, National Union Fire Ins. Co. of Pittsburgh, PA v. Hartford Ins. Co. of the Midwest, 248 AD2d 78; Fidelity General Ins. Co. v. Aetna Ins. Co., 27 AD2d 932.
To date, Progressive appears to have responded to all discovery demands with respect to the payments it has made. State Farm, after two years of searching, has been unable to produce [*5]the documentary information sought during the disclosure process and has conceded that no documents pertaining to the critical issue of this matter can be located. Accordingly, State Farm shall be precluded from offering any documentary evidence on the issue of insurance coverage in any further proceedings related to this matter.
The foregoing constitutes the Order of this Court.
Dated: May 10, 2005 _____________________________
HON. DENISE F. MOLIAJ.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
