Capra v. Lumbermens Mut. Cas. Co.

• Decision Date: 07 February 1974
• Citation: 43 A.D.2d 986,352 N.Y.S.2d 58
• Parties: Ross J. CAPRA, Jr., et al., Respondents, v. LUMBERMENS MUTUAL CASUALTY CO., Respondent, and Public Service Mutual Insurance Co., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 58

352 N.Y.S.2d 58

43 A.D.2d 986

Ross J. CAPRA, Jr., et al., Respondents, v. LUMBERMENS MUTUAL CASUALTY CO., Respondent, and Public Service Mutual Insurance Co., Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 7, 1974.

J. Raymond Quinn, Schenectady, for respondents.

Friedman, Ladd & Maksail, Schenectady (Thomas M. Hirschen, Schenectady, of counsel), for respondent Lumbermens.

Katz & Gantman, New York City (Donohue, Bohl, Clayton & Komar by Myron Komar, Albany, of counsel), for appellant.

Before STALEY, J.P., and GREENBLOTT, SWEENEY, KANE and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, entered May 31, 1973 in Schenectady County, upon a decision of the court at a Trial Term with an advisory jury.

This is an action for a declaratory judgment seeking to determine whether a policy of insurance issued by the respondent Lumbermens Mutual Casualty Co. (Lumbermens) to one Richard Price was in effect on the date of an accident between the present plaintiffs and Price. A negligence action by the plaintiffs against Price is presently pending The appellant Public Service Mutual Insurance Co. will be exposed to liability under an uninsured motorist endorsement in a policy issued to plaintiffs in the event there is no coverage by Lumbermens. Initially, summary judgment was granted against Lumbermens, but we reversed and granted summary judgment in favor of Lumbermens. Our decision was subsequently reversed by the Court of Appeals and the case was remanded for a trial of factual issues (Capra v. Lumbermens Mut. Cas. Co., 37 A.D.2d 190, 323 N.Y.S.2d 242, revd., 31 N.Y.2d 760, 338 N.Y.S.2d 437, 290 N.E.2d 438).

Lumbermens initially issued a policy to Price under the Assigned Risk Plan which was to be effective for one year, from April 15, 1965 to April 15, 1966, and which would be subject to renewal in each of the two subsequent years. The accident occurred on December 3, 1966, and it is contended by Lumbermens that the policy had been terminated by non-renewal at the end of its first year. It is not disputed that no premiums were paid for a first renewal, but as previously stated, the policy 'would have continued in full force and effect if the insurer failed to comply with the relevant provisions of the Assigned Risk Plan' (31 N.Y.2d 760, 762, 338 N.Y.S.2d 437, 438, 290 N.E.2d 438, 439). The provision here in issue is subdivision 2 of section 14 of the Assigned Risk Plan as approved by the Superintendent of Insurance pursuant to section 63 of the Insurance Law, which requires that at least 45 days prior to the inception date. of a renewal policy 'the insurer shall notify' the policyholder that a renewal policy will be issued provided that the stipulated renewal premium is remitted at least 15 days prior to the inception date. In determining that a proper evidentiary showing had not been made warranting a grant of summary judgment to either party, the Court of Appeals remanded for a trial upon the issue of whether the aforementioned 45-day notice 'was sent to the insured' (31 N.Y.2d at 762, 338 N.Y.S.2d at 439, 290 N.E.2d at 439).

On the trial of this issue, Lumbermens' evidence consisted solely of three exhibits, one of which was a copy of the 45-day notice which was purportedly mailed, the other two not being pertinent, and the testimony of the Kondratowicz, who was an underwriting supervisor when the notice was allegedly sent. Kondratowicz' testimony, if believed, established the procedures normally followed by Lumbermens in the ordinary course of business in mailing such notices, but he had not become familiar with the insured's file until the retirement of another employee in 1972; and had no personal knowledge as to whether the usual procedures had been followed in this particular case. In making a factual finding that the notice was sent, the trial court relied heavily on the appellant's failure to offer...