Dattore v Dattore

[*1] Dattore v Dattore 2006 NY Slip Op 50265(U) [11 Misc 3d 1057(A)] Decided on February 27, 2006 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2006
Supreme Court, Bronx County

Kathleen Dattore, Plaintiff,

against

Lawrence Dattore, Defendant.



25524/04

Nelson S. Roman, J.

Defendant moves seeking an order compelling this Court to apply Insurance Law §3420(g), which proscribes insurance coverage in cases of interspousal motor vehicle accidents. Plaintiff opposes the instant motion, asserting that Insurance Law §3420(g) is not applicable to the instant action and cross-moves seeking an order granting her partial summary judgement on the issue of liability. Defendant opposes plaintiff's motion for summary judgment asserting that issues of fact preclude the same.

For the reasons that follow hereinafter the motion and cross-motion are hereby granted.

The instant action is for alleged personal injuries stemming from a motor vehicle accident. It is alleged that plaintiff was injured when she was involved in an accident while a passenger in a vehicle operated by the defendant. The accident occurred on November 29, 2002, on the southbound New Jersey Turnpike. It is alleged that defendant was negligent in the operation of his vehicle.

Plaintiff was deposed and testified, in pertinent part, as follows. On December 29, 2002, she was involved in an accident while a passenger in the rear of a vehicle being operated by her husband. The accident occurred on the New Jersey Turnpike in Carney's point. Plaintiff and her husband had left their home in the Bronx and were en route to Florida for a cruise. Plaintiff was asleep in the rear of the car, when she felt an impact and heard her husband say "oh, my God." She looked up and saw that the car was headed for trees to the vehicle's right. Thereafter she felt another impact and was thrown from the vehicle, through the window and onto the ground. [*2]

Defendant was deposed and testified, pertinent part, as follows. On November 29, 2002, he was involved in a one vehicle accident on the New Jersey Turnpike. He was operating his vehicle with his wife, the plaintiff, riding in the back seat. He was en route Florida for a cruise having left his home in the Bronx. His wife had fallen asleep in the rear seat. As he drove at about 65 miles per hour, he began to feel drowsy. He dosed off and when he opened his eyes, he was headed towards a concrete divider on his left. He collided with the divider, bounced off the same and the car began to spin. He tried to get control of the vehicle but ultimately wound up in a ditch on the what had been the right side of the road he was traveling on.

Defendant provides a copy of the State Farm Mutual Automobile insurance policy which provided coverage to defendant's vehicle. Said policy list defendant as the insured, listing his Bronx address as his residence. The policy on page 10, excludes coverage for any injury suffered by the insured's spouse.

Insurance Law §3420(g)

Insurance Law 3420(g) states

No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy as provided in paragraphs one and two of this subsection. This exclusion shall apply only where the injured spouse, to be entitled to recover, must prove the culpable conduct of the insured spouse.

The above statute is designed to discourage collusive insurance claims between spouses involved in motor vehicle accidents. Yankelevitz v. Royal Globe Insurance Company, 59 NY2d 928 (1983). The constitutionality of this provision has been litigated and the Court of Appeals has deemed the statute constitutional and not in violation of equal protection. Id. Section 3420(g) serves to exclude coverage for an insured's liability in instances where an insured's spouse is injured due to the culpable conduct of the insured. Government Employees Insurance Company v. Pagano, 251 AD2d 452 (2nd Dept. 1998). The statute operates to exclude coverage under the aforementioned circumstances unless the insurance policy expressly declares and provides such coverage. Id. The statute is such that a policy is deemed not to provide such coverage unless expressly stated and as such, a disclaimer under the statute is not one pursuant to an exclusion but rather a disclaimer because the policy never afforded coverage in the first instance. Id. Consequently, an insured not need give it's insured timely notice of a disclaimer based on §3420(g), and will not be estopped from disclaiming coverage when it unreasonably delays in disclaiming. Id. In Pagano, the Court stated

[t]his section does not merely authorize insurers to exclude interspousal liability, it actually reverses the usual rule that exclusions must be clearly stated in the policy and substitutes a statutory presumption that interspousal liability is excluded from coverage unless an express provision relating specifically thereto is included in the policy(internal quotation marks ommitted)

Id. at 453-454. [*3]

Unquestionably, §3420(g) serves to bar any obligation to provide coverage for interspousal accidents occurring within this state when the policy was drafted. New Amsterdam Casualty Company v. Stecker, 3 NY2d 1 (1957). However, §3420(g) proscribes the same even if the accident occurs and litigated outside the state. Id. In discussing §3240(g), then titled subdivision 3 of §167, the Court stated

[s]ubdivision 3 of section 167 governs all automobile liability insurance policies issued in this State without regard to where the accident occurs. It is mandated into and made part of every policy of automobile liability insurance issued in this state.

Id. at 5. The Court reasoned that the applicability of §3420(g) hinged on traditional notions of contract law. Id. The Court in rejecting the notion that the applicable law is that of the state where the accident occurs, concluded that with regard to New York State insurance policies, the applicable law was the law of this state and that §3420(g) was applicable to all polices issued within the state. Id. Since by operation of statute performance in circumstances of interspousal was never contemplated when the policy was purchased, performance is never required merely because the accident occurs in a state which allows such action. Id. In Stecker the Court held that §3420(g) negated an insurer's obligation to provide coverage when the underlying cause of action arose from a motor vehicle accident where a husband was suing his wife. Id. The wife was covered by an insurance policy issued in New York State and the accident occurred and was being litigated in Connecticut. Id. The Court held that §3420(g) proscribed the insure's obligation to provide coverage since no express provision in the policy allowed for interspousal liability. Id.

The holding in New Amsterdam Casualty Company v. Stecker, 3 NY2d 1 (1957), has been uniformly adopted by the First Department. In Employers' Liability Assurance Corporation, Ltd. v. Aresty, 11 AD2d 331 (1st Dept. 1960), the Court in holding that §3420(g) applies to accident occurring outside this state stated

The execution, interpretation and validity of a contract is determined by the law of the place where the contract is made. The obligations of the parties thereunder are similarly determined. The exception to this general rule is where the parties at the time of the making of the contract entertained a different view or intention. If they had a view that the contract would be executed elsewhere then the contract is to be considered according to the law of such place. . . At the time the contract was executed in the instant case there can be no doubt that the parties intended the measure of their obligation thereunder to be determined by New York law. Matters of performance of a contract are regulated by the laws of the place where the contract by its terms is to be performed. When this contract was made there was, in effect, by intention of the parties a uniting of interpretation, execution and validity with that of place of performance, it being expected that such performance would occur in New York. (Internal citations omitted)

Id. at 333.

Courts of concurrent jurisdiction have all come to the same conclusion. See, United Casualty Company v. Georgopulo, 15 Misc 2d 169 (Supreme Court, New York County 1956); General Accident Fire and Life Assurance Corporation, Ltd. v. Javian, 2 Misc 2d 94 (Supreme Court, Queens County 1956); Gobe Indemnity Company v. Anastasio, 5 Misc 2d 238 (Supreme Court, Westchester County 1956).

[*4]Estoppel and Disclaimers

It is well settled that where an insurer, although not obligated to provide coverage, undertakes to do so, the same may be estopped from denying coverage. Albert J. Schiff Associates, Inc. v. Flack, 51 NY2d 692 (1980). Such is the case where the insurer fails to reserve it's right to disclaim, provides coverage, the insured suffers detriment by losing the right to control its own defense. Id. Thus

It is clear that when an insurer defends an action on behalf of an insured, in his stead, with knowledge of facts constituting a defense to coverage of the policy, it is thereafter estopped from asserting that the policy does not cover the claim.

O'Dowd v. American Surety Company of New York, 3 NY2d 347, 355 (1957); Wise v. McCalla, 24 AD3d 435 (2nd Dept. 2005). If however, the insurer reserves its right to disclaim while concomitantly providing a defense and no prejudice to the insured results, the insurer is not estopped from denying coverage at a later date. O'Dowd v. American Surety Company of New York, 3 NY2d 347 (1957). Any reservation provided by the insurer is sufficient to prevent reliance upon the defense provided by the insurer should the insurer decide to disclaim later. Federated Department Stores, Inc. v. Twin City Fire Insurance Company, 807 N.Y.S.2d 62 (1st Dept. 2006). Estoppel only lies if the insured demonstrates actual prejudice by the insurer's actions, specifically, that the "insurer's control of the defense is such that the character and strategy of the lawsuit can no longer be altered." Id. at 68. In O'Dowd the Court held that an insured was not estopped from disclaiming coverage when the defense provided to the insured was upon reservation and where there was no evidence that the insured did not have an opportunity to join in the defense of the action. O'Dowd v. American Surety Company of New York, 3 NY2d 347 (1957).

Estoppel cannot be used to create coverage where none exists. Federated Department Stores, Inc. v. Twin City Fire Insurance Company, 807 N.Y.S.2d 62 (1st Dept. 2006); Wassau Insurance Companies v. Feldman, 213 AD2d 179 (1st Dept. 1995); Sedwick Avenue Associates v. Insurance Company of the State of Pennsylvania, 203 AD2d 93 (1st Dept. 1994).

Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000): [*5]

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 N.Y.S.2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 N.Y.S.2d 833, 503 N.E.2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341 357 N.Y.S.2d 478, 313 N.E.2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 N.Y.S.2d 372; Mickelson v. Babcock, supra).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).

Sleep and Motor Vehicle Accidents

While falling asleep while driving is not negligence as matter of law, evidence that a defendant fell asleep while driving creates a rebuttable presumption of negligence. Spivak v. Heyward, 248 AD2d 58 (2nd Dept. 1998); Kilburn v. Bush, 223 AD2d 110 (4th Dept. 1996). Once such evidence has been tendered it is incumbent upon defendant to offer an explanation for his sleep thereby creating a triable issue of fact. Id. The reason for this rule is that requiring a plaintiff to establish the circumstances under which defendant fell asleep would be quite onerous and at times insurmountable. Id. As such, the burden of explaining why a defendant fell asleep should rest with the defendant who is in the best position to know why he or she fell asleep. This rule was established by the Fourth Department, where the Court in Kilburn v. Bush, 223 AD2d 110 (4th Dept. 1996), rejected the notion that sleep is a sudden and unheralded event. Id. Instead, the Court reasoned that sleep is a protracted event about which one has ample notice. Id. The Court quoted Bushnell v. Bushnell, 103 Conn. 583 (Supreme Court of Errors 1925, as follows

In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. . . If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not the driver was negligent; and, in determining that issue, all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its [*6]approach

Id. at 434.

Discussion

While defendant fails to properly articulate the relief he seeks, it is clear that what is sought is the application of Insurance Law §3420(g), thereby negating defendant's insurance carrier's obligation to provide defendant both coverage and a defense. Given the evidence, that plaintiff is suing her husband for his alleged negligence in the operation of his motor vehicle, it is clear that §3420(g) applies to the case at bar and as such defendant's insurance carrier State Farm Mutual is not obligated to provide defendant with coverage nor a defense to the instant action.

It is clear that the policy at issue is a policy purchased and executed in New York State. The policy does not contain any language indicating that the same provides coverage for interspousal accidents. In fact, the policy explicitly excludes coverage under those circumstances. The case law cited herein makes it abundantly clear that §3420(g) serves to proscribe coverage for interspousal liability in instances such as the one at bar, except when the policy expressly provides for such coverage. That the accident occurred in another jurisdiction is of no consequence, since coverage hinges on contract law. That law mandates that since the policy was a contract executed in this state and subject to its laws, New York law governs. New York law mandates that the insurer need not provide coverage under these circumstances. Further, the case law indicates that a disclaimer pursuant to §3420(g) is not one pursuant to an exclusion but is instead a disclaimer based on a circumstance the policy, as written, was never meant to cover. As such, State Farm was under no obligation to disclaim, timely or otherwise.

Although State Farm has been providing defendant with a defense, knowing that it had no obligation to do so, the same is not estopped from disclaiming at this juncture. First and foremost, the doctrine of estoppel cannot create coverage were none existed and as described above, no coverage for this circumstance ever existed. Second, with §3420(g), plaintiff was at all times on notice that State Farm had no obligation to provide coverage as a matter of law. Third, to the extent that this case is not scheduled for trial any time soon, despite the defense provided to the defendant to date, the defendant still has ample time to provide for its defense so it cannot be said that he has been prejudiced. Defendant can still alter the course of this litigation.

Plaintiff's motion for partial summary judgment on the issue of liability against defendant must be granted. The evidence demonstrates that defendant fell asleep while driving. Prior to falling asleep, he felt drowsy and felt he could overcome the same. After falling asleep and waking up, defendant was headed towards a divider which he impacted thereby initiating the accident herein. With this evidence, plaintiff has established prima facie entitlement to summary judgment as said evidence creates a rebuttable presumption that defendant was negligent and the proximate cause of the accident herein. Defendant has offered no evidence to explain or rebut the presumption. Partial summary judgment must be granted to plaintiff on the issue of liability. It is hereby

ORDERED that pursuant to Insurance Law §3420(g), State Farm is not obligated to indemnify or defend the defendant herein. It is further

ORDERED that plaintiff is hereby granted partial summary judgment on the issue of liability [*7]only, still requiring the same to prove the existence of a serious injury as defined by the Insurance Law. It is further

ORDERED that defendant serve a copy of this Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : February 27, 2006

Bronx, New York___________________

Nelson S. Roman, J.S.C.