Damon v Fortis Benefits Ins. Co.

[*1] Damon v Fortis Benefits Ins. Co. 2005 NY Slip Op 51845(U) [9 Misc 3d 1129(A)] Decided on November 3, 2005 Supreme Court, Rockland County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2005
Supreme Court, Rockland County

Peter J. Damon, Plaintiff,

against

Fortis Benefits Insurance Company, Defendant.



7673/04



Law Offices of Michael Pressman

Attys. For Deft.

125 Maiden Lane

New York, New York 10038-4956

Feerick Lynch PLLC

Attys. For Pltf.

96 South Broadway

South Nyack, New York 10960

Mary H. Smith, J.

It is not disputed that plaintiff was the insured under a policy issued by defendant which provided death and injury benefits. According to plaintiff, he had applied for this policy in Massachusetts, where he was living, and had been informed by defendant's sales representative that "no matter what the injury [he] sustained and no matter where [he] would be covered under this policy." It was not until "weeks and weeks later" that plaintiff, [*2]a member of the United States National Guard, actually received a copy of this policy while he was stationed in Iraq on an official tour of duty.

During one of his tours in Iraq, while he was assigned to servicing Black Hawk helicopters, plaintiff sustained the loss of both of his arms when a tire he was inflating on a helicopter exploded. Plaintiff made a timely claim under defendant's policy for benefits and, by letter dated July 29, 2004, his claim ultimately was denied under a policy exclusion which states that the insurer "will not pay a benefit for a loss which is caused by, results from, or contributed to by: Declared or undeclared war or any act of war."

Plaintiff commenced this action seeking judgment declaring that his sustained injuries fall within the risks covered by defendant's policy and that defendant must pay plaintiff pursuant to the policy the sum of $72,500. He further seeks an award of punitive damages and attorney's fees.

Both parties are now moving for summary judgment.

The Court rejects defendant's contention that "it is clear that plaintiff's injuries were caused by an act or (sic) war," since he was repairing a Black Hawk helicopter in Iraq while he was a member of the National Guard.

Where the provisions of an insurance policy "are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement." U.S. Fidelity & Guar. Co. v. Annunziata, 67 NY2d 229, 232 (1986); Toyota Motor Credit Corp. v. Felton, 305 AD2d 582, 583 (2nd Dept. 2003). Any ambiguity in the policy must be construed against defendant. See Miller v. Continental Ins. Co., 40 NY2d 675, 678 (1976); Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27 (1st Dept. 1979); U.S. Fidelity and Guar. Co. v. Cruz, 8 Misc 3d 1015(A) (Sup. Ct. 2005). The test for determining whether an insurance provision is ambiguous is the reasonable expectations of the average insured upon reading the policy and employing common speech. See Slayko v. Security Mut. Ins. Co., 285 AD2d 875, 877 (3rd Dept. 2001), citing Mostow v. State Farm Ins. Companies, 88 NY2d 321, 326-327 (1996).

Notably, the policy here in issue does not define the term "war." Webster's New World Dictionary, 4th. Ed. 1999, defines "war" as follows:

1. Open armed conflict between countries or between

factions within the same county;

2. Any active hostility, contention, or struggle;

conflict;

3. A battle;

4. Military operations as a profession or science.

Based upon the language in the exclusion and the commonly [*3]understood definitions of "war," this Court holds that plaintiff's injuries do not fall within the policy exclusion since he was not engaged in "armed conflict," or "active hostilit[ies]," or "battle" at the time he sustained his injuries; rather, plaintiff was simply engaged in routine maintenance of a helicopter tire. The mere fact that the United States is and was at war with Iraq at the time that plaintiff suffered his injuries is irrelevant; said circumstance of being at war merely furnished the occasion for plaintiff's injuries - the war did not "cause" or "contribute" to plaintiff's injuries, as required by the terms of the policy exclusion.

Based upon the undisputed facts and the foregoing analysis, defendant's motion for summary judgment is denied and plaintiff's cross-motion for summary judgment is granted to the extent that it is hereby Ordered, adjudged and declared that plaintiff's injuries of the loss of both of his arms fall within the risks covered by defendant's policy and that defendant must pay plaintiff pursuant to the policy the sum of $72,500.

However, the Court denies plaintiff summary judgment on his claim for an award of punitive damages. It is well settled that punitive damages are not recoverable for an ordinary breach of contract as their purpose is not remedy private wrongs but to vindicate public rights. See Garrity v. Lyle Stuart, Inc., 40 NY2d 354, 358 (1976). Thus, a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he was aggrieved and which is actionable as an independent tort, but also that such conduct was part of a pattern of similar conduct directed at the public generally. See New York University v. Continental Insurance Co., 87 NY2d 308, 315-316 (1995); Rocanova v. Equitable Life Assurance Society of United States, 83 NY2d 603, 613 (1994); RTC Industries, Inc. v. Goodtimes Home Video Corp., 1997 WL 35524 (S.D.NY 1997). "Punitive damages are available only in those limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as 'gross' and 'morally reprehensible' and of 'such wanton dishonesty as to imply criminal indifference to civil obligations'" New York University v. Continental Insurance Co., supra, at 316. Such allegations are found to be lacking in the matter at bar.

The Court also denies with leave to renew upon presentment of proper proof plaintiff's claim for an award of attorney's fees. It is well-settled that attorney's fees are not recoverable unless there is a contractual or statutory provision permitting same. See Matter of Green v. Potter, 51 NY2d 627, 629-630 (1980); Mighty Midgets, Inc. v. Centennial Insurance Company, 47 NY2d 12, 21-22 (1979); Green v. Fischbein Olivieri, 119 AD2d 345, 351 (1st Dept. 1986). While attorney's fees have been held recoverable in a declaratory action where the insured is forced to defend itself in an action by the insurer seeking to free itself [*4]from policy obligations, see U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 NY3d 592, 598 (2004), here, plaintiff is not defending himself but rather affirmatively pursuing relief against his insurance company. This Court has not found any case law granting attorney's fees in this circumstance.



Dated: November 3, 2005

New City, New York ______________________________________

MARY H. SMITH

J.S.C.