Braithewaite v Progressive Cas. Ins. Co.

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Braithewaite v Progressive Cas. Ins. Co. 2013 NY Slip Op 33943(U) August 16, 2013 Supreme Court, Kings County Docket Number: 5464/12 Judge: Peter P. Sweeney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Page 28 cf 264 164120 12 Dee151on end Ofder i:td 1n811 4 • • SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------x KESTON BRAITHEWAITE, Index No.:5464/12 Motion Date:4-22-13 Motion Cal. No. : 13 Plaintiff, DECISION/ORDER -againstPROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant, ---·---------------------------------------------------------------x The following papers numbered 1 to _5_ were read on this motion: Numbered Papers: Notice of Motion/Order to Show Cause Affidavits/Affinnations/Exhibits...... ....................... ........... Answering Affirmations/Affidavits/Exhibits .... ..................... ....... . Reply Affirmations/Affidavits/Exhibits .......................................... Other................................. .................. ........ ................................... . 1 2-3 4-5 Upon the foregoing papers the motion is decided as follows: The plaintiff, Keston Braithwaite, commenced this action to recover uninsured motorist benefits under a policy of insurance issued by the defendant, Progressive Casualty Insurance Company ("Progressive"). Plaintiff now moves for summary judgment. Plaintiff commenced this action alleging that he was injured in a motor vehicle accident that occrnTed on September 25, 2011, near the intersection of Fulton Street and Clermont Avenue, Brooklyn, New York. He alleges that he was a passenger in a motor vehicle owned by Dawn Wilkes and operated by Jeryn Bright when said vehicle collided with a 2003 BMW owned and operated by Chard K. Richard. The. police report, which plaintiff submitted in support of the motion, reflects that Mr. Richard reported that while he was traveling in a easterly direction on Fulton street, the Wilkes/Bright vehicle crossed over from the westbound side of Fulton Street into his lane of travel and collided head-on into his vehicle. He maintained that Mr. Bright crossed over into this lane while attempting to pass a vehicle in front of him. Mr. Richard goes on to state that in attempting to flee the scene of the accident, Mr. Bright struck two parked cars. -1 - Printed: 91812015 [* 2] Page 29 of 264 546412012 Decision and order Cfd 7126114 • At the time of the accident, Ms. Wilkes was a resident of Pennsylvania and a named insured under a policy of insurance issued by Progressive. The "covered vehicle" listed in the policy is a 2006 Mercedes-Benz R350 bearing Pennsylvania plate number HX 1665, the same vehicle Mr. Bright was operating at the time of the accident. Plaintiff acknowledges in his verified complaint that because Mr. Bright did not have Ms.Wilkes' permission to operate the vehicle, he is not entitled to coverage under the liability portion of the policy. He maintains, however, that under New York law, he is entitled to recover uninsured motorist benefits up to the amount of $300,000.00, the limits provided for in the policy. The relevant portions of the uninsured motorist endorsement contained in the Progressive Policy provide as follows: PART III - UNINSURED/UNDERINSURED MOTORIST COVERAGE INSURING AGREEMENT - UNINSURED MOTORIST COVERAGE If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. 2. 3. sustained by an insured person; caused by an accident; and arising out of the ownership, maintenance or use of an uninsured motor vehicle. The relevant definitions found in the "ADDITIONAL DEFINITIONS" portion of the uninsured motorist endorsement, provide as follows: When used in this Part III: 1. "Insured person" means: a. you or a relative; b. any person while operating a covered vehicle with the permission of you or a relative; c. · any person occupying, but not operating, a covered auto; and d. any person who is entitled to recover damages covered by this part three because of bodily injury sustained by a person described in a, b, or c above. 5. "Uninsured motor vehicle\! means a land motor vehicle or "' * * -2- Printed: 91812015 [* 3] Page 30 of 264 5464120,2 Decision and order cld 7/28/14 • trailer of any type; . to which no bodily injury liability bond or policy a. applies at the time of the accident; b. to which a bodily injury liability bond or policy applies at the time of the accident, but the bonding or insurance company: 1. denies coverage; or . 11. is insolvent, or becomes insolvent within six years after the accident occurs; c. to which a bodily injmy bond or policy applies at the time of the accident, but its limit of liability for bodily injury is less than tl1e minimum limit of liability for bodily injury specified by the financial responsibility law of the state in which the covered auto is principally garage; or d. whose owner or operator cannot be identified in that causes an accident resulting in bodily injury to an insured person, provided that the insured person, or someone on his or her behalf: i. reports the accident to the police or civil authority within 24 hours or as soon as practicable after the accident; and ii. notifies us within 30 days, or as soon as practicable thereafter, that the insured person has a cause of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and sets fo11h the facts in support thereof. An "uninsured motor vehicle" does not include any vehicle or equipment: a. owned by you 1 or a relative or furnished or available for the regular use of you or a relative; b. owned or operated by a self insurer under any applicable motor vehicle law, except a self insurer that is or becomes insolvent; c. operated on rails or crawler treads ; d. designed mainly for use off public roads, while not on public roads; 1 For purposes of the various coverage provided under the policy, the policy defines the term "you" and "your" to mean "a person shown as a named insured on the declarations page. Here, Ms. Wilkes is listed as an insured on the declarations page. -3- Prirted: 9/8/2015 [* 4] Page 31 of 264 5464/2012 Decision and order dtd 712811 4 e. f. g. • • while located for use as a residence or premises and not as a vehicle; that is a covered auto; or that is an underinsured motor vehicle. Progressive correctly maintains that plaintiff is not entitled to uninsured motorist benefits under the policy, since the vehicle he was occupying was both owned by Ms. Wilkes and a "covered auto" and therefore, not an "uninsured motor vehicle" within the meaning of the policy. However, an insurance policy containing liability coverage underwri.tten out-of-State by insurers authorized to do business in New York is required to conform to New York minimum financial requirements and, if not, is deemed to do so" (Matter ofAllstate Ins. Co. and Ramos, 234 A.D.2d 41, 650 N.Y.S.2d 210; Allstate Ins. Co. v. Lopez, 266 A.D.2d 209, 209-210, 697 N.Y.S.2d 684, 685; Insurance Law § 5 l07[a]; 11NYCRR.65.5). Further, since a motor vehicle insured under an out-of-State policy that contains liability coverage falls within the scope of Insurance Law Section 5107, the policy must be construed to contain uninsured motorist benefits (Midwest Mut. Ins. Co. v. Pisani, 250 A.D.2d 512, 673 N.Y.S.2d 126). Here, since Progressive is authorized to do business in N.ew York, the Progressive policy "must be construed to contain uninsured motorist benefits" to the extent required by New York Law (Matter ofMidwest Mut. Ins. Co. v. Pisani, 250 A.D.2d at 513, 673 N.Y.S.2d 126; Allstate Ins. Co. v. Lopez, 266 A.D.2d at 210, 697 N. Y.S.2d at 685). Even though the Progressive policy provided $300,000.00 in coverage for uninsured benefits, as stated above, those benefits are not available to the plaintiff since the vehicle he was occupying was not an "uninsured motor vehicle" within the meaning of the policy. Plaintiffs entitlement to uninsured benefits stems solely from the provisions of New York law. Under New York law, plaintiff is only entitled to $25,000.00 in uninsured benefits (Insurance Law§ 3420(f)( 1)). Progressive 's fai lure to issue a timely disclaimer of coverage for uninsured motorist benefits is of no consequence. Progressive was not obligated to issue a timely disclaimer pursuant to Insurance Law§ 3420(d) because the Progressive policy did not provide plaintiff with coverage for uninsured motorist benefits. A disclaimer is unnecessary when a claim falls outside the scope of a policy's coverage portion, since "requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed" ( Worcester Insurance Co. v. Bettenhauser, 95 N.Y.2d 185, 712 N.Y.S.2d 433, 734 N.E.2d 745; see Markevics v. Liberty Mutual Insurance Co., 97 N.Y .2d 646, 735 N.Y.S.2d 865, 761 N.E.2d 557; American Ref Fuel Co. ofHempsteq.d v. Employers Insurance Co. of Wausau, 265 A.D.2d 49, 705 N.Y.S.2d 67). For all of the above reasons, ir is hereby ORDERED that plaintiffs motion for summary judgment is granted solely to the extent that the Court hereby declares that plaintiff is entitled to coverage from Progressive for uninsured motorist benefits up to the amount of $25,000.00. -4- Pnrted: 91612015 [* 5] Page 32 of 264 • 5•64/2012 Decision and order dd 7n.811 4 • This constitutes the decision and order of the Cou1t. Dated: August 16, 2013 HON. PETER P. SW~ENEY. J.S.C. PETER P. SWEENEY -5- Printed: 9/8/2015

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