Matter of Mayo v Motor Veh. Acc. Indem. Corp.
Annotate this CaseDecided on November 3, 2006
Supreme Court, New York County
In the Matter of the Application of John Mayo
against
The Motor Vehicle Accident Indemnification Corporation
107934/06
Sheila Abdus-Salaam, J.
Upon the foregoing papers, it is ordered that this application, pursuant to Insurance Law § 5218, to allow petitioner John Mayo to bring an action against respondent the Motor Vehicle Accident Indemnification Corporation ("MVAIC"), is denied.
Petitioner was injured by a hit-and-run driver while operating a motorcycle owned by petitioner's friend, Ethel Reed, with Ms. Reed's permission. Neither the offending vehicle nor its driver has been identified. At the time of the accident, Ms. Reed's motorcycle was insured by Fireman's Insurance Company of Washington, D.C. However, the policy number on the insurance card issued to Ms. Reed turned out to be incorrect and petitioner was unable to file a claim because no insurance policy bearing that number existed. By the time petitioner learned of the correct policy number and filed a claim for uninsured motorist benefits (more than three years after the accident), Fireman's disclaimed coverage because its insured, Ms. Reed, failed to give timely notice of the accident.
Insurance Law § 5218(a) allows a "qualified person" with a cause of action for death or personal injury to seek court permission to sue MVAIC if the death or injury arose from a hit-and-run accident where certain conditions enumerated in subsection (b) of the statute are met. One of the enumerated conditions is that "the applicant is a qualified person" (§ 5218 [b][2]). "Qualified Person", as is pertinent here, is defined as [*2]"a resident of this state, other than an insured..." (Insurance Law § 5202[b]). An "insured" is a "person defined as an insured under the coverage required by subsection (f) of section three thousand four hundred twenty of this chapter [the MVAIC indemnification endorsement, which is included in every motor vehicle liability policy within the state]" (§ 5202 [I]). Thus, the term "qualified person" excludes one who is "insured".
Petitioner has failed to demonstrate that he is a "qualified person" under § 5218, a prerequisite to the issuance of an order allowing petitioner to sue MVAIC. The definition of "insured" is usually contained in the policy, and it generally encompasses anyone operating an insured vehicle with permission of the owner, as is the case here. If, as is likely, petitioner is "an insured" under Ms. Reed's Fireman's policy which was in effect at the time of petitioner's accident (a copy of which petitioner has failed to proffer), Fireman's disclaimer "cannot convert the status of [petitioner] from insured' to qualified' person[] ..." (Allstate Insurance Co. v. Motor Vehicle Accident Indemnification Corp., 30 AD2d 803 [1968]). Accordingly, petitioner has not met the requirements for an order permitting him to bring an action against MVAIC and the petition must be denied.[FN1]
ADJUDGED that the petition is dismissed.
Dated: November 3, 2006
J.S.C.
Footnotes
Footnote 1:In an affirmation in further support of the petition dated September 1, 2006, petitioner argues that because Ms. Reed's policy was uncollectible, she is a financially irresponsible motorist under § 5202(j) and that as a result, petitioner is entitled to MVAIC protection under § 5206(e). That section authorizes MVAIC to appear in and defend any action brought against a financially irresponsible motorist or against MVAIC. However, it does not require MVAIC to do so. In any event, whether or not Ms. Reed is a financially irresponsible motorist has no bearing on whether petitioner should be allowed to sue MVAIC under § 5218.
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