Black v. Hanover Ins. Co.
| Citation | 30 Misc.2d 1081,220 N.Y.S.2d 168 |
| Parties | Max BLACK, Plaintiff, v. HANOVER INSURANCE COMPANY, Defendant. |
| Decision Date | 09 October 1961 |
| Court | New York City Municipal Court |
Max H. Galfunt, New York Ciy, for plaintiff; Milton E. Jacobowitz, Far Rockaway, of counsel.
Dominic Cornella, New York City, for defendant; William C. Cain, New York City, of counsel.
The plaintiff, the holder of a New York Family Combination Automobile Policy issued by the defendant, seeks to recover for medical expenses by reason of the following clause:
'To pay all reasonable expenses incurred within one year from the date of the accident for necessary medical, * * * services: To or for the named insured and each relative who sustains bodily injury * * *; caused by accident, while occupying or through being struck by an automobile; * * *'
The plaintiff was a passenger in an automobile whose driver was attempting to park when he requested assistance of the plaintiff. The plaintiff left the automobile, and while directing the driver, the rear of the automobile came into contact with a pole which hit the plaintiff. The plaintiff, who was still under medical care, notified the defendant about six weeks after the occurrence in a letter stating, 'I did not report this any sooner because I did not know that under my policy * * * I am covered under the medical payment clause.'
There are two points to be determined; whether the required notice was given to the defendant, and whether the injuries sustained by the plaintiff were caused by an accident while occupying or through being struck by an automobile.
Even though the policy in question is called 'New York Family Combination Automobile Policy' it is essentially what is commonly called a liability policy, and as such is governed by Sec. 167, Insurance Law, which provides for certain standard provisions.
Prior to 1959 there may have been some question as to whether or not the plaintiff had given to the defendant notice as required by the terms of the policy. Much difficulty appeared to have existed as to what was reasonable notice. Further, the courts relied upon estoppel and waiver to add to the confusion.
In the case before this court there appears that the defendant had ample notice under the circumstances, and certainly there appears that the defendant was not prejudiced in any manner by the six-week delay in receiving notification of the accident. As a matter of fact, the defendant did not raise the question until the middle of the trial.
Sec. 167, subd. 8, Insurance Law, effective 9/1/1959 now provides,
'If under a liability policy * * *, an insurer shall disclaim liability or deny coverage * * * it shall give written notice as soon as is reasonably possible * * *.'
This was not done.
The second point concerns itself with an interpretation of the words 'while occupying or through being struck by an automobile' . Since the words used in this policy are of recent origin, there appears to be few cases on the subject. However, we do have some well-established principles to guide us.
A contract of insurance is to be construed according to the sense and meaning of the terms used, which if clear and unambiguous, are to be understood in their plain, ordinary, and popular sense. Auerbach v. Maryland Casualty Co., 236 N.Y. 247, 140 N.E. 577, 28 A.L.R. 1294. However, if there is any ambiguity the provision will be construed most strongly against the insurer, and in favor of the insured. Rolker v. Great Western Insurance Co., 21 N.Y.Super.Ct. 222,
N.Y. 17, 3 Keyes 17. As this court sees the...
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...cited, are the following: Beagle v. Automobile Club Insurance Co., Ohio Com.Pl., 176 N.E.2d 542; Black v. Hanover Insurance Company, Mun.Ct., New York City, 30 Misc.2d 1081, 220 N.Y.S.2d 168; Wright v. Beacon Mutual Indemnity Co., Ohio Com.Pl., 179 N.E.2d 547; Carson v. Nationwide Mutual In......
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