QBE Ins. Corp. v Olivares
2012 NY Slip Op 31104(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 113827/11
Judge: Peter H. Moulton
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SCANNED ON 4,25 20 2
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
11F"
PRESENT:
PART
Justice
INDEX NO.
MOTION DATE
MOTION SEQ. NO.
I
?,
MOTION CAL. NO.
The following papers, numbered 1 to
were read on thla motion tolfor
PAPER$ P&JMBERQ
Notlce of Motion/ Order t o Show Cause - Affldavito
Answering Affidavits
- Exhlblte ...
- Exhlblts
Replying Affldavlts
Ci"oss-Motion:
[7 Yes
Upon the foregoing papers, It la ordered that this
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FILED
A P H 18 2012
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NEW YORK
COUNTY CLERK'S OFFICE
J.S,C.
Check one:
u
FINAL DISPOSITION
Check if appropriate:
CT] DO NOT POST
0 SUBMIT ORDER/cnTDG.
0 SETTLE ORDER /JZTDG.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - Part 40 B
-X
_ _ _ _ _ - - _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _
In the Matter of the Application of
QBE INSURANCE CORPORATION by their
t/p/a COUNTRY WIDE MANAGEMENT SERVICES,
Petitioner ( s ) ,
Index No.: 113827/11
-against-
For an Order Staying the Arbitration
Demanded by SIMON OLIVARES
Respondent ( s ) ,
FILED
-andLEROY BURNEY, "JOHN DOE" &
ALLSTATE INSUFLANCE COMPANY,
APR 18 2012
NEW YORK
proposed Additional Co-ResPonde&~W CLERK'S OFFICE
PETER H. MOULTON, J.S.Ct
Petitioner moves f o r an order staying the arbitration of
Respondent's uninsured motorist claim on the grounds that the
adverse vehicle, owned by Leroy Burney, was insured by Allstate
Insurance Co., on the date of the accident on J u l y 31, 2010.
Alternatively, petitioner
seeks
to
stay arbitration because
respondent failed to submit a sworn statement with 90 days of the
accident ,
as
required
Uninsured/Underinsured
under
Motorists
Petitioner's
Endorsement.
Supplementary
Petitioner's
attorney attaches t h e purported policy, but does not state that she
has personal knowledge that this policy was issued to Respondent,
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not doe3 she refer to any provision of the policy. Petitioner also
seeks to add proposed additional Respondents and seeks discovery.
The Petition is granted to the extent of adding the proposed
additional Respondents and temporarily staying the arbitration,
pending the determination of the issue of whether the alleged
offending vehicle was
insured at the time of
the accident,
including whether any coverage was validly disclaimed by Allstate
Insurance Company.
In reply, Petitioner abandons its request to
stay the
arbitration on the basis that respondent failed to timely submit a
sworn Statement, as purportedly required in hit and run accidents.
Even assuming that the policy attached to the petition was issued
to Respondent, petitioner has not established that the accident
would constitute a ttHit-and-Runll defined by the policy.
as
The
Uninsured Motorist Endorsement-New York, attached to the policy,
requires that the insured report the accident with 24 hours or as
soon as reasonably -practicable and Ilshall have filed with the
company within 90 days thereafter a statement under oath that the
insured or his legal representative has a cause or causes of action
arising out of such accident for damages against a person or
persons whose identity is unascertainable, and setting forth the
factstt
(UninsuredMotorist Endorsement-New York at p 21). However,
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the policy also defines a "Hit-and-RunMotor Vehicle" to apply only
when "there cannot be ascertained the identity of either the
operator or the ownerll
known.
(
id.). Here, the owner of the vehicle is
Thus, the accident is not considered a IIHit-and-Run" as
defined by the policy.
Notably, stolen vehicles are treated
separately from hit-and-run accidents (see e.g., id. at p 20 [the
definition of IIUninsured Motor Vehiclew1
applies to stolen vehicles ,
and, another separate category where neither the owner nor driver
can be identified, including hit-and-run vehicles]).
Moreover, as
demonstrated in opposition to the petition,
Respondent did not learn that the offending vehicle was allegedly
stolen until more than four months after the accident, when his
attorney received a letter from Allstate Ins. Co, dated November 3 ,
2010, disclaiming
reported stolen
coverage because the offending vehicle was
leas than four hours prior to the accident.
Petitioner has met its burden to show that the alleged
offending vehicle was insured on the date of the accident (&?!2!2
S t a t e Farm Mut . A ~ t o .Ins. Co. v YeqlinRk1, 7 9 AD2d 1029 [2d Dept
19811
[once a prima facie case is made out, normally by submission
of a Department of Motor Vehicles FS-25 form or similar document,
the burden shifts to the claimant to prove that the vehicle in
question was
never
insured or
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that
the
insurance had
been
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cancelled] ) .
The letter sent by Allstate Insurance Co. to
Respondent, stating that it determined that its insured was not
responsible for the accident because his vehicle was stolen, is not
dispositive, and only raises issues of fact.
Petitioner's request for an order requiring Respondent to
submit to an EBT and IME, and f o r other discovery, prior to any
uninsured arbitration hearing is denied.
Petitioner has not
disputed Respondent's contention that Petitioner was aware of the
claim on October 5 , 2010, when Respondent's counsel sent Petitioner
a letter notifying it of the accident.
Here, the demand f o r
arbitration is dated, and was mailed, on November 16, 2011-nearly
a year later. The failure of an insurer to request discovery until
after receiving a Demand for Arbitration has resulted in the waiver
of its rights to discovery, absent a justifiable excuse (see Matter
of Allstate Ins. Co. v Miles, 280 AD2d 472 [2d Dept 20011; Matter
of
Interboro Mut. Indem, I ~ R Co. v Pardon, 270 AD2d
.
20001;
266 [2d Dept
Matt er of Liberty p ut. InB. C o . v A lmeida, 266 AD2d 547 [2d
l
Dept 19991; Matter of A l lstate Ina, Co. y Faulk, 250 AD2d 674 [2d
Dept 19981).
It is hereby
ORDERED
that the petition is granted to the sole extent that
issue of whether the alleged offending vehicle was insured at the
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time of the accident, including whether any coverage was validly
disclaimed by Allstate Insurance
Co.,
is referred to a Special
Referee to hear and report, and, the parties are added as described
below; and it is further
ORDERED that Petitioner's request f o r an order requiring that
Respondent submit to an EBT and IME, and other discovery, prior to
any uninsured arbitration hearing is denied, and it is further
ORDERED that arbitration is stayed until the Court confirms or
rejects the report of the Special Referee by separate motion; and
it is further
ORDERED that LEROY BURNEY, and ALLSTATE INSURANCE CO., are
added as party co-Respondents, upon Petitioner's service of a copy
of this Decision and Order with notice of entry upon each of them,
together with copies of all papers previously served in this
proceeding, which service shall be made within 60 days from the
date hereof, and it ia further
ORDERED that the caption of this proceeding is amended to
reflect inclusion of LEROY BURNEY, and ALLSTATE INSURANCE CO. as
Additional co-Respondents,and, upon Petitioner's service of a copy
of this Decision and Order with notice of entry on the Clerk of
this Court and the Trial Support Clerk (Room 158) , the Clerks shall
mark their records to reflect the amendment, and it is further
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ORDERED that Petitioner shall serve a copy of this Decision
and Order with notice of entry on Respondent and the arbitrator
within 30 days from the date hereof.
This constitutes the Decision and Order of the Court.
DATED: April 16, 2 0 1 2
ENTER :
J.S.C.
FILED
APR 18 2012
NEW YORK
COUNTY CLERK'S OFFICE
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