ACCIDENT VICTIM SUED INSURER TO COLLECT INJURY JUDGMENT; INSURER DENIED SUMMARY JUDGMENT BECAUSE ISSUE AS TO ITS PROPER DISCLAIMER

Court: Supreme Court, Appellate Division, First Department, New York

Case: Dennis Hough v. USAA Casualty Insurance Company

Date: March 1, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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RELATED POSTS:

INSURED DIDN'T GIVE NOTICE OF LAWSUIT; ACCIDENT VICTIM'S DIRECT CASE AGAINST INSURANCE CARRIER DISMISSED ON DEFENSE SUMMARY JUDGMENT (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Dec 22, 2011)

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Order, Supreme Court, New York County (George J. Silver, J.), entered May 13, 2011, which, to the extent appealed from as limited by the briefs, upon reargument, denied plaintiff's motion for summary judgment on its claim for recovery of an unsatisfied judgment against defendant's insured, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 6, 2010, unanimously dismissed, without costs, as abandoned.

Defendant's disclaimer of its duty to defend its insured in the underlying action does not bar it from asserting that its insured injured plaintiff intentionally, because that assertion is not a defense extending to the merits of plaintiff's personal injury claims against the insured (see Robbins v. Michigan Millers Mut. Ins. Co., 236 A.D.2d 769, 771, 653 N.Y.S.2d 975 [1997]). Since the underlying action culminated in a default judgment and the issue whether the insured's acts were intentional or negligent was not litigated, defendant is not collaterally estopped to assert in this action that its insured caused plaintiff's injuries intentionally (see id.). There is support for this assertion in the record (compare Rucaj v. Progressive Ins. Co., 19 A.D.3d 270, 273, 797 N.Y.S.2d 79 [2005] [insurer's defenses rejected as a matter of law]).

Since issues of fact exist whether the underlying incident was an "occurrence" within the meaning of the policy, i.e., an accident, or an intentional act outside the scope of coverage, which would render a disclaimer pursuant to Insurance Law Sec. 3420(d) unnecessary, it cannot yet be determined whether defendant's noncompliance with the statute precludes it from disclaiming coverage (see Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188-189, 712 N.Y.S.2d 433, 734 N.E.2d 745 [2000]; Seneca Ins. Co. v. Naprawa, 294 A.D.2d 183, 742 N.Y.S.2d 232 [2002]).

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