Matter of Encompass Floridian Indem. Co. v Crisci

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Matter of Encompass Floridian Indem. Co. v Crisci 2012 NY Slip Op 30886(U) March 23, 2012 Sup Ct, Nassau County Docket Number: 14765/11 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. scm [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU In the Matter of the Application for an Order Vacating all Arbitration Proceedings attempted to be had between ENCOMPASS FLORIDIAN INDEMNITY COMPANY MICHELE M. WOODARD Petitioner TRIAL/IAS Par 8 Index No. : 14765/11 Motion Seq. Nos. : 01 & 02 ENCaMP ASS INDENMITY CaMP ANY Proposed Add' l Petitioner DECISION AN ORDER -against- VINCENT CRISCI and KAO CRISCI Respondents. -------------------)C Papers Read on this Motion: Petitioner s Notice of Petition Proposed Add' l Petitioner s Order to Show Cause Respondents ' Affirmation in Opposition Petitioner s Affirmation in Reply )C)C )C)C Petitioner , Encompass Floridian Indemnity Company (hereinafter Encompass Floridian), commenced the within proceeding pursuant to CPLR Aricle 75 , for an order permanently staying any arbitration demanded in connection to ununderinsured motorist benefits and/or directing that a hearing be held to determine the Respondents ' eligibilty therefor (Sequence #001). Additionally, by way of an Order to Show Cause dated , December 14 , 2011 , the Petitioner separately moves for various forms of relief as are recited hereinafter (Sequence #002). By way of background , on May 14 2009 , the Respondent , Vincent Crisci , was crossing the street at the intersection of SR683 and 6 Street in Sarasota , Florida when he was struck by a vehicle which left the scene of the accident prior to the arival of the police (see Petition at 'j8; see also Em. C). As a result thereof, on or about September 28 , 20 n , the Respondents served a Demand for Arbitration in connection to a policy of insurance issued by Encompass Floridian relative to the Respondents vehicles registered and garaged in Florida (id at 'j'j5 6;E)Ch. A; see also Tesoro Affrmation in [* 2] Opposition dated December 19 , 2011 at 'j23;E)Ch. G). In response thereto , Encompass Floridian informed the Respondents that it would not agree to the demanded arbitration and would seek cour intervention permanently staying same (id at Em. D). The within proceeding was consequently commenced on or about October 14 2011 and seeks a permanent stay of the demanded arbitration. In support thereof, counsel for Encompass Floridian asserts the arbitration being sought is under a policy whiche)Cpressly provides that all parties must agree to arbitrate and given the Petitioner s unequivocal refusal to proceed , a permanent stay is waranted (id 'j'jI0- 12). In the interim and subsequent to the commencement of the instat proceeding, it was discovered that the Respondents herein were the holders of a second insurance policy issued by Encompass Indemnty Company (hereinafter Encompass Indemnity), the scope of which covered the Respondents vehicles registered and garaged in New York (see Feeney Affirmation in Support of Order to Show Cause at 'j12). In connection to this second policy of insurance , on or about December 12 2011 , the Respondents served an Amended Demand for Arbitration for uninsured motorist benefits , the substance of which also contained a claim predicated upon loss of consortium asserted by Mrs. Crisci 17- 19; E)Ch. C; see also at 'j'j14 (id Tesoro Affirmation in Opposition dated , December 19th , 2012 , at 'j'j3 , 11 23 ;E)Ch. A ). As a result , on December 14 , 2011 , the within Order to Show Cause was interposed seeking the following enumerated forms of relief: ( a) a temporar stay of the arbitrations respectively demanded against Encompass Floridian and Encompass Indemnity, until further order of this Cour; (b) an Order permanently staying the demanded arbitration against Encompass Floridian;(c) an order declaring that the coverage respectively issued by Encompass Floridian and Encompass Indemnity canot be stacked; (d) an order declaring that the loss of consortium claim asserted by Respondent , Kako Crisci , in not cognizable and permanently staying same; (e) an order directing Respondent , Vincent Crisci, to appear for an e)Camination under oath (hereinafter EVa), as well as independent medical e)Caminations [* 3] (hereinafter IME); (fJ an order directing the Respondent , Vincent Crisci , to provide e)Cecuted medical authorizations and;(g) an order directing Respondent , Vincent Crisci , to provide tax returns for the years 2005 to present (Sequence #002). In support of the Order to Show Cause , counsel initially asserts thatthe loss of consortium claim asserted by Mrs. Crisci is not cognizable in accordance with controllng New York appellate authority (id at'j'j17- 19). Counsel additionally contends the e)Cpress language contained in each of the policies at issue herein strictly prohibits the stacking of the benefits respectively provided thereunder and as such (id the Respondents may not recover under the benefits afforded under both policies at 'j'j22- 26). Finally, counsel contends that under the terms of the policy issued by Encompass Indemnty, it is EVa entitled to conduct an IME and an authorizations and ta)C returs therefrom of Mr. Cresci , as well as demand and receive medical (id at 'j'j27- 33). Counsel stresses that Encompass Indemnity will be severely prejudiced if forced to proceed to arbitration under the New York policy without first being permitted to engage in the requested discovery (id). In opposing the various forms of relief herein requested , Respondents ' counsel has interposed two separate opposing affirmations dated , October 31 and December 19 , 2011. In the affirmation dated October 31 , 2011 , counsel opposes the permanent stay of arbitration , sought by Encompass Floridian in the underlying petition , and posits the policy issued to the Respondents clearly provides that "arbitration is the only option to settle disputes between the petitioner and respondents for uninsured motorist benefit claims * * * " (see Tesoro Affrmation in Opposition dated , October 31 2011 at 'j5). In support of said assertion , counsel ine)Cplicably references the New York policy issued by Encompass Indemnity 1 While the Petitioner s enumerated requests for relief do not formally include a request to add Encompass Feeney Affrmation in Support at (see Indemnity as a named par, same was made in the Supporting Affrmation 15). Given the status of Encompass Indemnity as the carier which issued the New York policy in connection to which arbitration is demanded , as well as the absence of any prejudice or surrise , Encompass Indemnity is hereby Maya s Black Creek, LLCv Angelo Balbo Realty Corp. added as an additional Petitioner herein (CPLR 3025(bJ; 82 AD3d 11 75(2d Dept 2011)). [* 4] and the policy issued by Encompass Floridian , the latter of which is the policy relevant to the not (see underlying Petition Tesoro Affrmation in Opposition dated , October 31 2011 at'i'i , 5 , 6 , 8 , 9 , 16 17; E)Ch. B). As to the opposition dated December 19 2011 , Respondents ' counsel specifically addresses the relief requested in the Order to Show Cause. Initially counsel argues that the Respondents have fully cooperated with the investigation of the subject claims and accordingly any additional demands for discovery should be denied (see Tesoro Affirmation in Opposition dated , December 19 2011 at 'j'j7 12). Counsel fuher asserts that there has been ample time in which to conduct discovery and the (id failure to do so until now should preclude any attempts to obtain the demanded information at 'j'j16 18). Decision Petition The cour initially addresses the relief contained in the underlying Petition , whereby Encompass Floridian seeks a permanent stay of arbitration demanded by the Respondents on September 28 2011. A review of the relevant Demand indicates that same is sought in connection to an insurance policy which e)Cpressly provides that " (b )oth paries must agree to arbitration" as to uninsured motorist coverage. It is settled that a par wil not be compelled to arbitrate and , thereby, to surender the right to resort to the cours , absent' evidence which affirmatively establishes that the arbitrate their disputes (Waldron Goddess 61 NY2d 181 (1984) quoting paries e)Cpressly Schubtex. Inc. agreed to Allen Snyder, Inc. 49 NY2d 1 (1979) at 6). " The agreement to arbitrate must be clear , e)Cplicit and unequivocal and must not depend upon implication or subtlety" (Howell Corastor Holding Company, Inc. 16 AD3d 585 (2d Dept 2005) (internal citations omitted)). Here , the language contained in the see Petition at Exh. B as Endorsement G-23 162- D at pp. 4- [* 5] relevant policy of insurance clearly and unequivocally states that both paries arbitration in connection to uninsured motorists claims Petitioner s consent , the Petition is hereby (id). GRANTED must agree to proceed to Accordingly, given the absence of the and the arbitration in connection to the policy issued by Encompass Floridian is permanently stayed (Sequence #001). Order to Show Cause The Cour now addresses the first branch of the Order to Show Cause denominated as paragraph (a) which seeks a temporar stay of the arbitrations demanded against Encompass Floridian and Encompass Indemnity. In accordance with the decision as set forth herein above , this relief has been rendered moot as to Encompass Floridian. With respect to Encompass Indemnity, the record establishes that while Mr. Cresci has asserted a claim for lost wages , he has only produced ta)C returs for the years 2008 and 2009 , which the Petitioner asserts are incomplete and insuffcient to determine the amount of pre- incident loss. Specifically, the Petitioner states the ta) retus provided " show( ed) . nothing eared" and only listed "ta)able interest."3 As a general proposition showing of necessity" (Dore par seeking the production of tax retus Allstate Indemnity Company, must rnake a strong 264 AD2d 804 (2d Dept 1999)). Here inasmuch as Mr. Cresci is seeking to recover for lost wages , the disclosure of his ta)C returs is (id. appropriate Accordingly, the demanded arbitration is temporarily stayed as against Encompass Indemnity until such time that the Respondent , Vincent Cresci, produces ta) returs for a five year period between 2005 through 2009. That branch of the instant Order to Show Cause denominated as paragraph (b), which seeks an Order permanently staying the demanded arbitration against Encompass Floridian , is hereby in accordance with the above recited decision issued in connection to the Petition. GRANTED That branch of the application denominated as paragraph (c), which seeks an order declaring that the coverage respectively issued by Encompass Floridian and Encompass Indemnity canot 3 see Tesoro Affirmation in Opposition dated , December 19 h, 2011 at Exhs. C G). be [* 6] stacked , is hereby Of paricular relevance herein , GRANTED. the policy issued by Encompass Floridian provides the following in connection to uninsured motorists claims: " (w)here there is other applicable coverage , we will provide coverage as follows * * * (1) (a )ny recovery for damages sustained by you or a family member * * * (c) (w)hile not occupying any vehicle may equal , but not e)Cceed , the highest limit for Uninsured Mortorists Coverage applicable to anyone vehicle under any family member (emphasis in original). Additionally, the one policy affording coverage to you or any policy issued by Encompass Indemnity specifically provides " (i)f an insured is entitled to uninsured motorist coverage * * * under more than one policy, the ma)imum amount such insured may recover shall not e)Cceed the highest limit of such coverage for anyone vehicle under anyone policy * * *" In the instant matter, the language contained in the two policies at issue herein clearly precludes the stackin Hil, 213 AD2d 976 (4 (2d Dept (State Farm Mutual Insurance Company of coverage respectively afforded thereunder 200l);Met Life Auto branch of the application is hereby Brasco Dept 1995); Home GRANTED 283 AD2d 492 Nationwide Mutual Insurance Company, Leonorovitz 24 AD3d 675 (2d Dept 2005)). Accordingly, this and this Court hereby declares that the insurance overage separately provided by Encompass Floridian and Encompass Indemnity canot be stacked CPLR (id. 3001). That branch of the within Order to Show Cause designated as (d), which seeks an order declaring that the loss of consortium claim asserted by Respondent, Kako Crisci , is not sustainable and permanently staying the arbitration as to this Respondent , is hereby GRANTED. Here , the specific language of the relevant insurance policy does not provide for the recovery of such damages and rather the terms thereof state "(w)e 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 injur sustained by the insured * " In the instant matter , Mrs. Crisci was not involved in the subject accident and did not sustain any bodily injur not entitled to uninsured motorist benefits as afforded under the plain terms of the policy resulting therefrom and assuch is (Travelers [* 7] Lianides 246 AD2d 490 (1st Dept 1998)). Insurance Company application is hereby 4 Accordingly, this branch of the and this Cour hereby declares that the loss of consortium claim GRANTED asserted by Mrs. Cresci is not sustainable under the subject insurance policy and therefore the CPLR (id.; demanded arbitration relative to said claim is permanently stayed as to this Respondent 3001). That branch of the within Order to Show Cause denominated as paragraph (e), which seeks an order directing Respondent , Vincent Crisci, to appear for an DENIED. In the matter sub judice EVa, as well as an IME , is hereby the record establishes that while the Respondents reported the occurence of the subject accident on May 21 st, 2009 , the Petitioners did not seek this discovery until the interposition of the instant Order to Show Cause on December 14 , 2011. Moreover , the record demonstrates that said discovery was indeed available under the policy issued by Encompass Floridian originally against which the claims were fied in May of2009. Thus , as the Petitioners have had a significant amount of time in which to obtain discovery prior to the commencement of the within proceeding, as well as the submission of the Order to Show Cause , the application is Insurance Company Urena Insurance Company Pardon 208 AD2d 623 (2d Dept 1994); 270 AD2d 266 (2d Dept 2000); DENIED (Allstate Matter oflnterboro Mutual Indemnity Miles Allstate Insurance Company 280 AD2d 472 (2d Dept 2001) ). That branch of the within application denominated as paragraph (fJ is hereby GRANTED and the Respondent , Vincent Crisci , is hereby directed to e)Cecute and provide up to date e)Cecuted medical authorizations. Finally, in accordance with the above determination issued in connection with paragraph (a), that branch of the within application denominated as paragraph (g) is hereby GRATED to the e)Ctent that Respondent , Vincent Cresci , is hereby directed to produce ta)C returns for the years 2005 through 4 The Cour notes in asserting that a claim for loss of consortium is sustainable , counsel for the Respondents relies exclusively upon a list of decisions rendered by arbitrators and does not cite to any appellate authority in (see Terorso Affrmation in Opposition dated , December 19 h, 2011 at Exh. D). support of said assertion [* 8] In sum , the instat (g) and DENIED Order to supra). 264 AD2d 804 (2d Dept 1999), Allstate Indemnity Company, 2009 (Dore Show Cause is as to paragraphs (a), (b),c), (d), (fJ and GRATED as to paragraph (e). This constitutes the Decision and Order of the Cour. All applications not specifically addressed are Denied. DATED: 2012 , N. Y. 11501 Mineola March 23 ENTER: ON. MICHELE M. WOODARD XXX F:\Encompass Floridian vCrisci MBS. wpd ENTERED" MAR 3 0 2012 NASSAU COUHTY COUNTY CLlUtKJ I OfFtCE

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