From: Subject: State Farm Mut. Auto. Ins. Co. v Langan (2008 NY Slip Op 06980) Date: Wed, 1 Oct 2008 09:50:11 -0400 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.nycourts.gov/reporter/3dseries/2008/2008_06980.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 State Farm Mut. Auto. Ins. Co. v Langan (2008 NY Slip = Op 06980)
State Farm Mut. Auto. Ins. Co. v = Langan
2008 NY Slip Op 06980
Decided on September 16, 2008
Appellate Division, Second Department
Fisher, J.
Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.
This opinion is uncorrected = and=20 subject to revision before publication in the Official=20 Reports.


Decided on September = 16, 2008=20
SUPREME COURT OF THE STATE OF NEW=20 YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT =
WILLIAM=20 F. MASTRO, J.P.
STEVEN W. FISHER
DAVID S. RITTER
EDWARD D. = CARNI=20
WILLIAM E. McCARTHY, JJ.=20

2006-09040
(Index No. 15384/02) =

[*1]State Farm=20 Mutual Automobile Insurance Company, respondent,

v

John = Robert=20 Langan, etc., appellant.


APPEAL by the defendant, in an action, inter alia, for a judgment = declaring=20 the rights of the parties under an insurance contract, as limited by his = brief,=20 from so much of an order of the Supreme Court (Anthony L. Parga, J.), = entered in=20 Nassau County on August 10, 2006, as, upon renewal, granted that branch = of the=20 plaintiff's motion which was for summary judgment declaring that the = plaintiff=20 was not obligated to provide insurance coverage for the injuries = sustained by=20 Neil Conrad Spicehandler as a result of a hit-and-run incident on = February 12,=20 2002, and denied that branch of his cross motion which was for summary = judgment=20 declaring that the plaintiff was obligated to provide insurance coverage = for the=20 injuries sustained by Neil Conrad Spicehandler as a result of a = hit-and-run=20 incident on February 12, 2002.


Saiber Schlesinger Satz & = Goldstein, LLC, New York, N.Y.
(Jennine DiSomma of counsel), for = appellant.=20
Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and
Cheryl = F.=20 Korman of counsel), for
respondent.

OPINION & ORDER


FISHER, J.On February 12, 2002, Neil = Conrad=20 Spicehandler was struck and fatally injured by a motor vehicle driven by = Ronald=20 Popadich, who was later arrested, inter alia, in connection with = Spicehandler's=20 death. John Robert Langan, as administrator of Spicehandler's estate, = sought to=20 recover uninsured motorist benefits and death benefits pursuant to an = automobile=20 liability policy issued to Langan by the State Farm Mutual Automobile = Insurance=20 Company (hereinafter State Farm). Langan claimed that [*2]the policy covered Spicehandler as an = insured. After an=20 investigation, State Farm disclaimed coverage on a number of grounds. = Insofar as=20 relevant to this appeal, State Farm asserted that it was not obligated = to afford=20 coverage because Spicehandler's injuries were caused by Popadich's = intentional=20 criminal conduct and thus were not the result of an "accident" as = required by=20 the State Farm policy.=20

State Farm then commenced this action, inter alia, for a judgment = declaring=20 that it was not obligated to provide coverage, and it moved, among other = things,=20 for summary judgment on the ground that Spicehandler was injured as a = result of=20 Popadich's intentional conduct, and not as a result of a covered = "accident." By=20 order dated January 26, 2004, the Supreme Court, inter alia, denied = State Farm's=20 motion, without prejudice to renew following the resolution of the = criminal=20 charges pending against Popadich as a result of the incident. On appeal, = this=20 court, inter alia, affirmed that portion of the Supreme Court's order = (see=20 State Farm Mut. Auto. Ins. Co. v Langan, 18 AD3d 860, 862).=20

On September 28, 2005, Popadich pleaded guilty to the charge of = murder in the=20 second degree, admitting that, on February 12, 2002, he intentionally = caused=20 Spicehandler's death by striking him with an automobile. Thereafter, = State Farm=20 moved for leave to renew its prior motion, inter alia, for summary = judgment,=20 tendering, among other things, the transcript of Popadich's plea = proceedings.=20 Langan cross-moved, inter alia, for summary judgment. The Supreme Court = granted=20 State Farm's motion for leave to renew, and upon renewal, granted that = branch of=20 State Farm's motion which was for summary judgment and denied that = branch of=20 Langan's cross motion which was for summary judgment. We modify.=20

The Supreme Court correctly determined that State Farm was not = obligated to=20 provide coverage under the policy's uninsured motorist endorsement. The = purpose=20 of an uninsured motorist endorsement is to help effectuate New York's = compulsory=20 automobile liability insurance scheme "by providing coverage to insured = persons=20 who suffer automobile accident injuries at the hands of financially=20 irresponsible motorists" (Matter of Country-Wide Ins. Co. v Wagoner, = 45=20 NY2d 581, 586). To that end, the endorsement is designed to afford an = injured=20 person "the same protection as he [or she] would have had if he [or she] = had=20 been injured in an accident caused by an identifiable automobile covered = by a=20 standard automobile liability insurance policy in effect at the time of, = and=20 applicable to, the accident" (McCarthy v Motor Veh. Acc. Indem. = Corp., 16=20 AD2d 35, 38, affd 12 NY2d 922; see Matter of Nagel = [Motor Veh.=20 Acc. Indem. Corp.], 22 NY2d 165, 170 [noting that "it has = been=20 recognized that the purpose of this statute was to provide compensation = through=20 the MVAIC to the extent that claims would be recognized and claimants=20 compensated as if the owner or driver of the vehicle causing the injury = were=20 insured"]; accord Matter of Knickerbocker Ins. Co. = [Faison], 22=20 NY2d 554, 558, cert denied 393 US 1055). Thus, in New York, the = mandatory=20 coverage afforded under an uninsured motorist endorsement is meant to be = coextensive with, and therefore no greater than, the standard coverage = that=20 would ordinarily be available to the uninsured motorist had he or she = been=20 insured (cf. McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d at = 42).=20 Plainly, no standard automobile liability policy would have provided = coverage to=20 Popadich for the injuries he intentionally inflicted on Spicehandler = (see=20 Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, = 928;=20 Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629). It follows, = then,=20 that, because no coverage would have been provided under a standard = automobile=20 liability policy issued to Popadich, State Farm is not obligated to = provide=20 benefits under the uninsured motorist endorsement of its policy with = Langan=20 (see McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d at 42).=20 Accordingly, we conclude that State Farm established its prima facie = entitlement=20 to judgment as a matter of law with respect to Langan's claim for = uninsured=20 motorist benefits by establishing that Spicehandler's injury and = subsequent=20 death were caused by Popadich's intentional criminal acts (see = Zuckerman v=20 City of New York, 49 NY2d 557, 562). In opposition, Langan failed to = raise a=20 triable issue of fact. [*3]

That does not entirely resolve the issue of coverage, however, as = Langan also=20 claims to be entitled to recover benefits under the policy's mandatory = personal=20 injury protection endorsement and its death, dismemberment, and loss of = sight=20 provisions. We conclude on the record presented that he is so entitled.=20

As explained previously, for policy reasons, New York law does not = extend=20 coverage under a mandatory uninsured motorist endorsement to injuries = caused=20 intentionally by a tortfeasor. In other contexts, however, the issue = whether an=20 event may be deemed "accidental" for insurance purposes is " usually = determined=20 by looking at the casualty from the point of view of the insured = to see=20 whether or not from his [or her] point of view the event was unexpected, = unusual=20 and unforeseen'" (Nallan v Union Labor Life Ins. Co., 42 NY2d = 884, 885,=20 quoting 30 NY Jur, Insurance, =A7 1099, p 484 [emphasis added]; see = Agoado=20 Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145). "In the = absence of=20 an express provision in the policy to the contrary, where the insured is = intentionally injured or killed by another, and the injury or death is = not the=20 result of misconduct, provocation, or assault by the insured, but is = unforeseen=20 from the insured's point of view, and occurs without his or her agency, = the=20 injury or death is an accident or accidental, or by accidental means, = within the=20 meaning of accident insurance policies, and the insurer is liable = therefor" (10=20 Couch on Ins. =A7 140:41; see New York Insurance Department = Regulations =A7=20 60-1.1[f] [11 NYCRR =A7 60-1.1(f)] [requiring every "owner's policy of = liability=20 insurance" to include "(a) provision that assault and battery shall be = deemed an=20 accident unless committed by or at the direction of the insured."]).=20 Consequently, in contexts other than a claim made under an uninsured = motorist=20 endorsement, coverage is unaffected by whether the tortfeasor acted=20 intentionally in causing the injury, provided only that, from the = viewpoint of=20 the insured, the event was "unexpected, unusual and unforeseen" and not = brought=20 about by the insured's own "misconduct, provocation, or assault" = (Nallan v=20 Union Labor Life Ins. Co., 42 NY2d 884).=20

In this case, from Spicehandler's point of view, the incident that = caused his=20 injuries and death was certainly "unexpected, unusual and unforeseen," = and was=20 not the result of any "misconduct, provocation, or assault" on his part. = Consequently, the question of whether or not Popadich acted with = criminal=20 intent, although critical to the issue of coverage under the uninsured = motorist=20 endorsement, was entirely irrelevant to State Farm's obligation here to = provide=20 coverage under the subject policy's mandatory personal injury protection = endorsement, and its death, dismemberment, and loss of sight provisions, = neither=20 of which contain a specific exclusion for injury or death caused by an=20 intentional act. Viewed in this context, our observation on the prior = appeal=20 that, "if Spicehandler's injuries and death were the result of an = intentional=20 assault or an intentional homicide . . . the incident is not covered = under the=20 applicable policy" (State Farm Mut. Auto. Ins. Co. v Langan, 18 = AD3d at=20 862), can reasonably be read as directed only at the policy's uninsured = motorist=20 endorsement. Moreover, that our holding affords different = interpretations of the=20 term "accident" within the subject policy is the inevitable consequence = of the=20 fact that current New York law makes uninsured motorist coverage in this = State=20 narrower than would be expected under general insurance principles.=20

In sum, State Farm is not obligated to provide coverage under the = subject=20 policy's uninsured motorist endorsement for the injuries sustained by=20 Spicehandler as a result of a hit-and-run incident on February 12, 2002, = but is=20 obligated to provide benefits for those injuries under the subject = policy's=20 mandatory personal injury protection endorsement and its death, = dismemberment,=20 and loss of sight provisions.=20

Langan's remaining contentions are either not properly before us or = without=20 merit.
RITTER and McCARTHY, JJ., concur. [*4]

ORDERED that the order is modified, on the law, (1) by deleting the = provision=20 thereof, upon renewal, granting that branch of the motion which was for = summary=20 judgment declaring that the plaintiff is not obligated to provide = coverage=20 pursuant to the mandatory personal injury protection endorsement and = death,=20 dismemberment, and loss of sight provisions of its insurance contract = for the=20 injuries sustained by Neil Conrad Spicehandler as a result of a = hit-and-run=20 incident on February 12, 2002, and substituting therefor a provision, = upon=20 renewal, denying that branch of the motion, and (2) by deleting the = provision=20 thereof, upon renewal, denying that branch of the cross motion which was = for=20 summary judgment declaring that the plaintiff is obligated to provide = coverage=20 pursuant to the mandatory personal injury protection endorsement and = death,=20 dismemberment, and loss of sight provisions of its insurance contract = for the=20 injuries sustained by Neil Conrad Spicehandler as a result of a = hit-and-run=20 incident on February 12, 2002, and substituting therefor a provision, = upon=20 renewal, granting that branch of the cross motion; as so modified, the = order is=20 affirmed insofar as appealed from, with one bill of costs to the = appellant.=20
MASTRO, J.P., concurs in part and dissents in part and votes to = affirm the=20 order insofar as appealed from, with the following memorandum, in which = CARNI,=20 J., concurs.=20

On February 12, 2002, Neil Conrad Spicehandler was struck and injured = by a=20 motor vehicle operated by Ronald Popadich. Spicehandler subsequently = died as a=20 result of his injuries. The administrator of Spicehandler's estate, the=20 defendant John Robert Langan, sought to recover, inter alia, uninsured = motorist=20 benefits pursuant to an automobile liability policy issued by the = plaintiff,=20 State Farm Mutual Automobile Insurance Company (hereinafter State Farm), = to=20 Langan, under which Spicehandler was an insured. After an investigation, = State=20 Farm disclaimed coverage under its policy, inter alia, on the ground = that=20 Spicehandler's injuries were the result of intentional conduct and were = not the=20 result of an accident as required by the policy.=20

State Farm then commenced the instant action, inter alia, for a = judgment=20 declaring that it was not obligated to provide the coverage sought by = the=20 defendant, and moved for summary judgment on the ground that = Spicehandler was=20 injured as a result of Popadich's intentional conduct. In an order dated = January=20 26, 2004, the Supreme Court denied State Farm's motion, without = prejudice to=20 renewal following a disposition of the criminal proceedings pending = against=20 Popadich. On appeal from that order, this Court, inter alia, affirmed = the=20 Supreme Court's denial of that branch of State Farm's motion which = sought a=20 declaratory judgment (see State Farm Mut. Auto. Ins. Co. v Langan, = 18=20 AD3d 860, 862). In so doing, we expressly determined that "[c]ontrary to = [Langan's] contention, if Spicehandler's injuries and death were = the=20 result of an intentional assault or an intentional homicide, then they = were not=20 the result of an accident, and the incident is not covered under the=20 applicable policy" (id. [emphasis added]).=20

On September 28, 2005, Popadich pleaded guilty to the charge of = murder in the=20 second degree, admitting that on February 12, 2002, he intended to cause = Spicehandler's death by striking him with an automobile. Thereafter, = State Farm=20 moved for leave to renew its prior motion, inter alia, for summary = judgment and=20 the defendant cross-moved, among other things, for summary judgment. In = support=20 of its motion, State Farm relied upon the transcript of Popadich's plea=20 proceedings. Upon renewal, the Supreme Court granted that branch of = State Farm's=20 motion for which was for summary judgment and denied that branch of the=20 defendant's cross motion which was for summary judgment. I would affirm. =

State Farm met its prima facie burden of establishing that it was not = liable=20 to the defendant under the terms of its automobile liability policy = (see=20 generally GTF Mktg v Colonial Aluminum Sales, 66 NY2d 965, 967; = Zuckerman=20 v City of New York, 49 NY2d 557, 562). Popadich's plea of guilty, = and [*5]the statements he made during the course of = his plea=20 proceedings, established that Spicehandler's injuries were the result of = intentional conduct and were not the result of an accident, thus = precluding=20 recovery under the policy and rendering Popadich uninsured (see = Matter of=20 Allstate Ins. Co. v Massre, 14 AD3d 610, 611; McCarthy v Motor = Veh. Acc.=20 Indem. Corp., 16 AD2d 35, affd 12 NY2d 922; Matter of = Progressive=20 Northwestern Ins. Co. v Van Dina, 282 AD2d 680).=20

Based upon the 1963 decision in McCarthy v Motor Veh. Acc. Indem. = Corp.=20 (16 AD2d 35, affd 12 NY2d 922), as well as our own numerous=20 precedents interpreting it, I agree that we are required to uphold the = denial of=20 uninsured motorist benefits for injuries resulting from Popadich's = intentional=20 conduct. However, it is noteworthy that in the years since McCarthy = was=20 decided, the overwhelming national trend has been to permit such = coverage under=20 facts similar to those at bar, with a substantial majority of = jurisdictions now=20 doing so (see e.g. American Family Mut. Ins. Co. v Petersen, 679 = NW2d=20 571; Shaw v City of Jersey City, 174 NJ 567; Wendell v State = Farm Mut.=20 Auto. Ins. Co., 293 Mont. 140; Race v Nationwide Mut. Fire Ins. = Co.,=20 542 So2d 347; Country Cos. v Bourbon, 122 Ill App3d 1061; = Kish v=20 Cent. Natl. Ins. Group of Omaha, 67 Ohio St.2d 41). The courts in = the many=20 jurisdictions which now extend uninsured motorist benefits to innocent = policy=20 holders who are injured by the intentional acts of tortfeasors have = achieved=20 this result largely by interpreting the term "accident" from the = perspective of=20 the injured party rather than the tortfeasor. They have based their = approach on=20 the strong public policy considerations favoring an avenue of redress = for=20 injured parties, as well as the reasonable expectations of those parties = when=20 they enter into private insurance contracts and pay premiums for first = party=20 benefits to compensate them for injuries suffered at the hands of = motorists who=20 have no available liability insurance coverage, either because they = never=20 purchased such coverage or because their liability carriers have validly = disclaimed coverage under the terms of their policies.=20

I recognize that in Michaels v City of Buffalo (85 NY2d 754), = the=20 Court of Appeals elected to interpret the term "accident" from the = perspective=20 of the tortfeasor-insured, rather than from the viewpoint of the injured = party,=20 in the distinct context of automobile liability coverage. However, in = the=20 present case involving, inter alia, a claim for uninsured motorist = benefits, the=20 injured party was in fact the "insured," since he purchased the = uninsured=20 motorist coverage as part of his own liability policy. Moreover, =A7 = 60-1.1(f) of=20 New York's Insurance Department Regulations (see 11 NYCRR =A7 = 60-1.1[f]),=20 which is applicable to every owner's policy of liability insurance = issued in=20 this state (see generally Dingle v Prudential Prop. & Cas. Ins. = Co.,=20 85 NY2d 657, 660; Trizzano v Allstate Ins. Co., 7 AD3d 783, = 785),=20 expressly requires the inclusion of "[a] provision that assault and = battery=20 shall be deemed an accident unless committed by or at the direction of = the=20 insured" (emphasis added). Thus, viewing the party claiming = uninsured=20 motorist benefits as the "insured," it is clear that the intentional = acts=20 committed by Popadich were not "by or at the direction of the insured," = and the=20 incident therefore should be a covered "accident" with respect to the = injured=20 policy holder.=20

Given the foregoing discussion, the persuasive logic and strong = public policy=20 considerations underlying those decisions in other jurisdictions which = have=20 allowed the recovery of uninsured motorist benefits in cases such as = this, and=20 the overwhelming modern national trend favoring such recovery, I would=20 respectfully suggest that the time may have come for a reexamination of = the=20 governing principles in this area by our state's highest court.=20

I decline to join in the determination of my colleagues in the = majority that=20 the defendant is entitled to recover death benefits pursuant to the = mandatory=20 personal injury protection endorsement and the death, dismemberment, and = loss of=20 sight provisions of the subject policy. That determination is = inconsistent with=20 our previous order in this very case, in which we unequivocally and=20 unambiguously held that no coverage was available under the policy = for=20 Spicehandler's death if it resulted from intentional conduct. = Significantly,=20 [*6]our previous decision and order was not = merely=20 limited to the uninsured motorist endorsement of the policy, but was = applicable=20 to the entire policy. Accordingly, recovery under any section of = the=20 policy is precluded by the express language of our previous order, which = is=20 binding upon us and constitutes the law of the case (see generally = J-Mar=20 Serv. Ctr. v Mahoney, Connor & Hussey, 45 AD3d 809; Suffolk = County=20 Water Auth. v Schneider, Inc., 288 AD2d 297). In any event, even if = we were=20 free to disregard the clear terms of our previous order in this case, I = would=20 decline to join in the majority's construction of the policy in such a = manner=20 that the phrase "caused by an accident" would have radically different=20 interpretations depending upon whether it appears in the uninsured = motorist=20 endorsement or in the death benefit provisions of the subject policy.=20

ENTER:
James Edward Pelzer
Clerk of the Court

=20