Smith v Geico Ins. Co.
2012 NY Slip Op 30918(U)
April 5, 2012
Supreme Court, Suffolk County
Docket Number: 08799/2010
Judge: Paul J. Baisley
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
INDEX NO. 08799/2010
SHORT FORM ORDER
SLJPRERIECOlJRT - STATE OF N E W YORK
DCM-J - SUFFOLK COUNTY
PRES EN T :
Hon. Paul J. Baisley, Jr.
ORIG. RETURN DATE: January 17, 201 2
FINAL RETURN DATE: February 14, 20 12
MOT. SEQ. #: 001 - D D
CROSS MOT. SEQ.#. 002 - MG
MICHAEL S. LANGEI,LA, PC
2459 OCEAN AVENU13
GEICO INSURANCE COMPANY,
DEFT'S ATTORNEY for GEICO:
TERESA M. SPINA, ESQ.
170 FROEHLTCI-I FARM RLVD.
GEICO INSURANCE COMPANY,
Third Party Plaintiff
Index No. 0007/13
DEFT'S ATTORNEY for
Liberty Mutual Ins. COL:
MARTYN TOI-IER & h4ARTYN, ESQS
330 OLD COUNTRY RD., SUITE 21 1
LIBERTY MUTUAL INSURANCE COMPANY,
Third Party De fend ant .
Upon the following papers numbered 1 to 23read on these motions for suimiary judgment; Notice of Motion/ Order
to Show Causc and supporting papers 1 - 7, 1 1 - 18 ; Notice of Cross Motion and supporting papers ;
Affidavits and supporting papers 8 - 10 ; Replying Affidavits and supporting papers 19 - 23 ; Other -; - (
ORDERED that thcse motions are liercby consolidatcd for purposcs of this tletel-mination;and
it is ftii-ther
ORDERED that this motion by defendantithird-pal-typlaintiff for an order, pursuaiit to CPLR
32 12, granting sutiiiiiary judginent dismissing the complaint is denied; and it is further
Smith V S Ccico
ORDERED tliat this motion (incorrectly designated as a cross motion) by thc third-party
defendant Tor an order, pursuant to CPLR 3212, granting suiiitnary judgment dismissing tlic third-party
complaint is granted; and it is further
ORDERED that the reinaining parties are directed to appear for a preliminary c ~ n ~ e r c n c c
pili-suant to 22 NYCRR 202.5 (9 on April 20, 2012 at the Suprcmc Court, DCM Part, Onc Court
Street, Rivcrhcad, New York at 10:00 a m .
This is an action to rccover no-fault insurance benefits, including outstanding medical bills and
loss of earnings, fi-om the deCeiidaiitltliird-party plaintiff Geico Insuraiicc Conipany (Gcico). It appears
that, on or about September 2, 2008, the plaintiff was injured when lie was involved i n an accident
with a motor vehicle operated by nonparty Edward J. Conrad (Conrad). Geico iiisured tlie plaintiffs
vchicle, and tlic 1hird-party dcfendant Liberty Mutual Insurance Company (Liberty) insured the Conrad
vehicle. The Fxts and circumstances sun-ounding tlic happening of the accident are not clear.
Gcico niovcs for summary judgement disiiiissing tlic complaint on tlic grounds, iiiter ulin, that
thc plaintiff’ failed to submit tlic prescribcd no-fault iiisuraiice billing fot-nis, that tlic plaintifi7s
intciitional actions are excludcd fi-om no-fault coveragc, and that the plaintiff was a pcdcstrian who
may only seek no-fault benefits from Liberty. The proponent of a summary judgmcnt motion inlist
makc a prima facie showing of eiititlemeiit to judgment as a matter of law, tendering sufficient
cvidcnce to eliiiiiiiate any material issue of fact (see Alvnrez v Prospect Hosp., 68 NY2d 320, 508
NYS2d 923 ; Wii7egrndv New Yo14 Uiiiv. Med. Ctr., 64 NY2d 8.51, 487 NYS2d 316 ).
Thc burden tlien shifts to tlie party opposing the motion which inust produce evidentiary proof in
admissible form sufficient to rcquire a trial of the iiiatcrial issucs of fact (Roth vBni,reto, 289 AD2d
557. 735 NYS2d 197 [2d Dept 20011; Rehecchi v JNiitniorc, 172 AD2d 600, 568 NYS2d 423 [2d Dept
IWI]; O’Neill v Fish/riIl, 134 AD2d 457, 521 NYS2d 272 [2d Dept 19S71). Fiuthemiore, the parties’
competing interest inust be viewed “in a light most favorable to the party opposing the motion”
(Mcrriiie h f i d c i i i d Bciiili, N.A. v Dirzo & Artie ’s Autotnntic Transniission Co., 168 AD2d 6 10, 563
NYS2d 449 [2d Dept 19901).
I n support of its imotion, Geico submits the pleadings, the affirmation of its attorney, affidavits
fiom two cniployecs of Geico, and a copy oftlic police accident report, Forni MV-105, regarding this
incidcnt. The police accident report record relied on by Geico is plainly inadniissiblc and has not becii
considered by tlic Court in niaking this dctemiiiiation (scc Mooney v Osoiviedgi, 235 AD2d 603, 65 1
NYS2d 71 3 [3d Dept 19971; Sz~~i~znnsJii
v Rohinsoii, 234 AD2d 992, 65 1 NYS2d 820 [4th Dept 19961;
Aetiirr Crrs. c ! Siw. Co. v Islnncl Tiwiisp. Coi-p.,233 AD2d 157, 649 NYS2d 675 [lst Dept 19961;
CrrrZiezix vD.B. Iuterioi,s, 214 AD2d 323, 624 NYS2d 582 [ l s t Dept 19951). Geico fails to include an
affidavit by soineone with personal knowledge as to how t h i s accident happened- aiitl how the plaintiff
Initially, Ccico argues that the plaintiff cannot satisfy his prima facie burdcn in an action to
recovcr no-fault bencfits that tlie prescribcd statutory billing forins have been mailed by him and
rcccivcd by tlic insurer, and that payment of‘ no-fault benefits is ovcrduc (Insurance Law S 5 106; I I
Smith vs Gcico
NYCRR 65.15). In support ofthis contention, Geico submits the affidavit of Roxanne McCaiville
(McCarvillc), an eiiiployce in Geico’s claims division. In her affidavit McCarvillc swears that she
made “several rcpeated and LUISLUXCSS~LI~attempts to obtain tlie relevant bills.” She fiirther swears to
tlie detailed procedure followcd by Geico i n mailing denial of claims forms to its insureds, and that the
copies ofthc “relevant Denial of Claim forms ... if applicable and as referred to below, are attached
hcrcto.” Despite the fact that a denial of claim form was issued by Geico regarding this incident on
October 3, 2008, Geico fails to include a copy in its submission. However, tlie plaintifrlias supplied
the Court with a copy of said denial of claim. It has been held that once an insurer repudiates liability
by issuing it denial of coverage, an insured is excused from any of liis obligations under the policy (see
Lee I’ Anmicirri Tu. IIIS.Co., 304 AD2d 713, 757 NYS2d 796 [2d Dept 20031; State Farrn Iris. Co. v
Donlotor, 266 AD2d 21 9, 697 NYS2d 348 [2d Dept 19991; K z ~ g State F ~ I VMiit. Airto. 111s.
C‘o., 2 18
AD2d 863, 630 NYS2d 397 [3d Dept 19951; see g e i w d y Aueubcrch v. Otsego Mirt. Fire Iiis. C‘o., 36
AD3d 540, 829 NYS2d 195 [2d Dept 20071; hut see Pcrzrl K. Kooriqy, P.C. 11 Chiccrgo Ins. Co., 2001
WL 262703 [US Dist Ct, SD NY 2001I). Therefore, Gcico’s contention herein is without mcrit.
I n addition, Geico has failed to establish its entitlement to siiinmary judgiiieiit regarding its
contention that the plaintiffs intentional acts exclude liim from no-fault coverage. It is undisputed that
Gcico issued a Family Automobile Insurance Policy (Policy) to the plaintiff on August 8, 2008,
effective June 3, 2005 to December 3, 2008. The Policy, Section VI - Ainendnients and
Endorsements, Form A30NY, provides, in pertinent part’
This coverage docs not apply to personal iijiiiy sustained by:
(e) any person who intentionally causes h s or her own personal injury;
Without submitting admissible proof of tlie facts, Geico nonetheless contends that the plaintiff
was involved in a “road rage” incident with Conrad, that lie stopped liis vehicle, got out of the vehicle,
jumped on the hood of the Conrad vcliicle, aiid was injured. It is well established that when an
insuraiicc company intends to exclude certain coverage from its obligation under a policy, the
insurance coiiipany must use clear aiid iinaiiibiguous language (242-44 E. 77th St., 1LC v Greater N. Y.
k h i Ills. Co., 31 AD3d 100, 81 5 NYS2d 507 [lst Dcpt 20061). In addition, “[s]ucl-i exclusions or
exceptions rrom policy Coverage must be specific and clear in order to be enforceable, and they are ...
to be accorded a strict and narrow construction. Thus the insurance company bears tlie burden of
establishing that the exclusions apply in a particular case” (Lee v State Farm Fire Ce Caszrnlty Co., 32
AD3d 902, 903, 822 NYS2d 559, 560 12d Dcpt ZOOS]).
The Court finds that, even if it were to coiisider the police accident report submitted herein,
there are multiple issues of fact regarding the actions of Conrad and the plaintiff including, but not
limitcd to, whether the plaintiff exited liis vehicle, and whether lie juinped on tlie hood of Conrad’s
vchiclc. Thc issucs of fact present hcrein preclude a finding as to what actions of tl-tc plaintiff were
intentional, or that any intentional actioiis caused liis alleged injuries.
Smith vs Geico
TIie issues of fact hereiii also preclude a finding that Geico is entitled to summary judgment
finding Liberty liable to tlie plaintiff for no-fault benefits “based on the doctrine of striking vehicle.” It
has been held that a person who has left his or her car is considered a pedestrian covercd under no-fault
insurancc law with regard to the insurance covering the striking vehicle (Matter o Gerieral Acc., Fire
& Life Iris. Co. Virrief, 169 AD2d 608, 564 NYS2d 754 [lst Dept 19911; C o l o ~ Aetiia Cas. & Stir..
Co., 64 AD2d 495,410 NYS2d 634 [2d Dept 19781 aSfL1 48 NY2d 570,423 NYS2d 008 ). This
is truc evcn where tlie person left 111sor her vehicle with tlic intention to return shortly (Thomm v
Trcivc1er.s Iiis. Co., 54 hD2d 608, 387 NYS2d 495 [4th Dcpl 19761; Actiin Iiis. C‘o. v Espinosci, 92
M i x 2d 200, 399 NYS2d 975 [Sup Ct, Kings County 19771). Here, Geico has €ailed to establish tlie
facts surrounding this accident, and whether llie plaintiff was a pedestrian at the time of his alleged
iiijuries. Geico’s reniainiiig contentions are either not established sufficiently to warrant sumniaiy
judgmcnt, without merit, or raised prematurely.
Failure to make a prima facie showing of entitlement to summary judgment requires a denial of
the motion, regardless of the sufficiency of the opposing papers (see AIvniw v Prospect Hosp., szipm;
M’iiiegrd v New York Uiiiv. Mecl. Ctr., szrpm). Accordingly, Geico’s motion for suinmary judgment is
Liberty moves for summary judgement dismissing the third-party complaint on the grounds,
intcr alia, that the plaintiffs intentional actions are excluded from no-fault coverage., that Gcico is
liable to the plaintiff for no-fault insurance benefits because the plaintiffs alleged injuries were the
result of his “use or operation”’ of his vehicle, and that tlie Court is an improper forum to resolve the
dispute between the insurers regarding no-fault coverage. Liberty has also failed to submit any
admissible evidence, or affidavits from an individual with personal knowledge, indicating how this
accident occurred. The issues of fact rcgarding the plaintiffs actions and the cause o f his alleged
Liberty has failed to establish its entitlenicnt to sumniary judgment regarding
injuries remain. T~IUS,
tlic first two grounds of its motion.
IHowcver, Liberty also contends that the dispute between Geico and Liberty over who might be
responsible to pay no-fault (first-party) benefits must be determined in an arbitration proceeding.
Law $ 5 I 05 (b) requires that mandatory arbitration be used to resolve all disputes between
insurcrs as to their responsibility for tlie payment of first-party benefits. 11 NYCRli 65- 4.1 1 (a) (6)
pmvidcs that nimddoi-y nrbitralion “&all not xpply to a n y claiin for recovery rights to which an
insurer in good faith asserts a defense of lack of coverage of an alleged covered person on any grounds,
... [h]owever, any controversy between iiisurcrs involving the responsibility or tlie obligation to pay
first-party benefits (i.e., priority or payincnt or sources o r payment as provided in section 65-3.12 of
this Part) is not considered a coverage question and must be submitted to mandatory arbitration under
11 NYCRR 65-3.12 (b) provides that “[;If a dispute regarding priority of payment arises among
insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom
notice of claim is given . . . by or 011 behalfof an eligible injziredpevson, shall be responsible for
payment to such person. Any such dispute shall be resolved in accordance with the arbitration Smith vs
Ceico vs GEICO
proccdures established pursuant to section 51 05 of the Insurance Law and section 65-4.1 1 of this Part”
(cm ph as i s add cd) .
Gcico contends that the plaintirf is not an “eligible injured person’’ by virtue (of his allcgedly
intcntional acts. However, tlie facts surrounding the plaintiffs actions, and the cause of his injuries,
have not been detemiined, and Geico’s contention is essentially that there is a question of coverage,
which does not require mandatory arbitration. It has been held that when an insurer denies tlie
plaintiff‘s claim on the ground that no-fault benefits are payable by another insurer, that insurcr has
raised an issue as to which insurer was obligated to pay first-party benefits, subject to mandatory
arbitration (M.N. Deiitnl Diagriostics, P. C. Govemriicirt Eiiipls. Ills. Co., 81 AD3d 541, 9 16 NYS2d
598 11 st Dept 201 11; Pi.ogressive Cas. 111s. 11. New Yorl‘iStcrle Iiis. Fluid, 47 A.D.3d 633, 850
N.Y.S.2d 478 [2d Dept 20081; Pciiw~iioiiiit
Iirs. Co. v hdiccio, 169 AD2d 761, 565 NYS2d 128 [2d Dept
19911; IT(rrt$ortl ACC.& Iiideiii. Co. I, Countiy- Wide Ins. Co., 63 AD2d 981, 405 NYS2d 775 [2d Dept
19781). Accordingly, Liberty’s motion for summary judgment is granted, and tlie third-party coinplaint
I S dismissed.
Thc Court directs that tlie causes of action as to which suinniary judgment was granted are
hcrcby scvcred and that thc remaining causes of action shall continue (see CPLR 32‘12 [e] [ 11).
HON. PAUGJ. BATSLEY,JR., J.S.C.