Aetna Cas. and Sur. Co. v. Brice

• Decision Date: 16 November 1979
• Citation: 72 A.D.2d 927,422 N.Y.S.2d 203
• Parties: The AETNA CASUALTY AND SURETY COMPANY, Respondent, v. Glenna J. BRICE, as Administratrix of the Estate of Charles Maybee, Defendant, Joseph S. Lauria, as Administrator of the Estate of Mark Lauria and Clayton Eldridge, Individually and as Administrator of the Estate of Norma F. Eldridge, Appellants, Frederick C. Brice, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 203

422 N.Y.S.2d 203

72 A.D.2d 927

The AETNA CASUALTY AND SURETY COMPANY, Respondent, v. Glenna J. BRICE, as Administratrix of the Estate of Charles Maybee, Defendant Joseph S. Lauria, as Administrator of the Estate of Mark Lauria and Clayton Eldridge, Individually and as Administrator of the Estate of Norma F Eldridge, Appellants Frederick C. Brice, Defendant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 16, 1979.

Offermann, Fallon, Mahoney, Cassano & Geller by Leo J. Fallon, Buffalo, for appellant Lauria.

Borins, Halpern, Setel, Snitzer, Levy, Yellen & Fradin by J. Scott Marshall, Buffalo, for appellant Eldridge; Jaeckle, Fleischmann & Mugel, Buffalo, of counsel.

Schaus & Schaus by Maynard C. Schaus, Buffalo, for respondent.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

MEMORANDUM:

On March 8, 1974 a Mustang automobile owned by Frederick Brice and operated by decedent Charles Maybee collided with a vehicle operated by Norma Eldridge. Eldridge and Mark Lauria, Maybee's passenger, died as the result of injuries received in the accident, as did Maybee, and the representatives of their estates, appellants here, have commenced actions against Maybee's administrator and Frederick Brice as the owner of the vehicle.

Plaintiff is the insurer of Frederick Brice. It brought this action seeking a judgment declaring that Maybee was not operating the insured vehicle with the consent and permission of the owner. The owner takes no position on the issue of consent, although he first alleged that the vehicle was operated with his consent (see Aetna Cas. & Sur. Co. v. Lauria, 54 A.D.2d 183, 388 N.Y.S.2d 432). Appellants also question the timeliness of plaintiff's disclaimer. A jury has found that the Brice vehicle was being operated without the owner's consent and that plaintiff's disclaimer was timely.

Section 388(1) of the Vehicle & Traffic Law provides in pertinent part: "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied of such owner."

The intent of the legislature in this statutory language was to express "the policy that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant (i. e., the owner)" (Continental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350, 352, 280 N.Y.S.2d 123, 124, 227 N.E.2d 28, 29; Carey v. AAA Con Transp.,61 A.D.2d 113, 401 N.Y.S.2d 1015).

To that end, there is a presumption of consent created by the statute, a presumption which has been characterized as "very strong" (see Blunt v. Zinni, 32 A.D.2d 882, 883, 302 N.Y.S.2d 504, affd. 27 N.Y.2d 521, 312 N.Y.S.2d 996, 261 N.E.2d 107; Lincoln v. Austic, 60 A.D.2d 487, 491, 401 N.Y.S.2d 1020) and which continues until there is substantial evidence to the contrary to overcome it (Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 171 N.E.2d 454). It is a form of presumption of regularity (see Fiocco v. Carver, 234 N.Y. 219, 222, 137 N.E. 309). An owner may deny another the use of his vehicle, of course, but the unauthorized possession of a motor vehicle being a crime, lack of consent is not to be inferred ordinarily. Similarly, an owner may restrict the use of a vehicle in the hands of another, and such restriction, if violated, would mean that the vehicle was being driven without the owner's permission (Chaika v. Vandenberg, 252 N.Y. 101, 106, 169 N.E. 103; DeLancey v. Nationwide Ins. Co., 26 A.D.2d 631, 632, 272 N.Y.S.2d 468; and cf. Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389). An owner is not liable for the negligence of another in operating his vehicle at a time (Rachon v. Cheuvant, 37 A.D.2d 911, 912, 325 N.Y.S.2d 452) or for a purpose outside the terms of the consent given (Harper v. Parker, 12 A.D.2d 327, 330, 211 N.Y.S.2d 325, affd. 11 N.Y.2d 1095, 230 N.Y.S.2d 719, 184 N.E.2d 310). Appellants had the burden of proving consent, but upon proving Brice's ownership they had the benefit of this rebuttable presumption that Maybee was operating the auto with the owner's permission. Plaintiff offered substantial evidence to the contrary, tending to rebut the presumption, thereby raising issues of fact and credibility for the jury (see Blunt v. Zinni, supra; Comstock v. Beeman, 24 A.D.2d 931, 264 N.Y.S.2d 767, affd. 18 N.Y.2d 772, Lincoln v. Austic, supra; Ryder v. Cue Car Rental, 32 A.D.2d 143, 147, 302 N.Y.S.2d 17; Mras v. Chess, 22 A.D.2d 983, 984, 254 N.Y.S.2d 710).

Concededly, Brice did not give Maybee express permission to drive his auto on the night of this accident. Appellants maintain, however, that Maybee did have the owner's implied permission. They have sought to prove as much from the prior dealings between the parties (see Lincoln v. Austic, supra).

The evidence at the trial developed that at the time of the accident Frederick Brice had been dating Charles Maybee's mother for some months (they are now married) and he had on occasion permitted Maybee, a junior operator, to drive his Mustang. On the night of the accident Charles Maybee's older sister, Melinda, asked to use Brice's car to go to a party and, because the mother and Brice wished to use the larger family car, Brice gave his car keys to Melinda so that she might drive to the party. She left home sometime around 8:00 p. m Her brother arrived at the party separately. At about 11:00 p. m., without his sister's knowledge or consent, he took the car keys from Melinda's jacket pocket, left the party and subsequently had the accident resulting in his death and the deaths of appellants' intestates. Under the facts recited the question of implied consent was for the jury and, it having resolved the issue against appellants, we are not warranted in setting aside its finding.

Appellants also seek to reverse the jury's finding that plaintiff's disclaimer was timely.

In order effectively to disclaim liability or deny coverage for death or bodily injury under an automobile liability insurance policy, an insurer must "give written notice (of such disclaimer) as soon as is reasonably possible" (Insurance Law, § 167, subd. 8; Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 416 N.Y.S.2d 539, 389 N.E.2d 1061). If it fails to do so, it is precluded from disclaiming (see Allstate Ins. Co. v. Gross, 27 N.Y.2d 263, 317 N.Y.S.2d 309, 265 N.E.2d 736; Matter of Allstate Ins. Co. (Frank), 44 N.Y.2d 897, 407 N.Y.S.2d 696, 379 N.E.2d 222). No particular time lapse is deemed undue delay. Reasonableness is the standard by which the insurer's action is judged and reasonableness is a question of fact determined upon the circumstances of the case which require the insurer to take more or less time to make, complete and act diligently on the investigation of its coverage (see Hartford Ins. Co. v. County of Nassau, supra, 46 N.Y.2d p. 1030, 416 N.Y.S.2d 539, 389 N.E.2d 1061). It is only in the...