Downing v. Allstate Ins. Co.

• Decision Date: 12 June 1964
• Citation: 43 Misc.2d 215,250 N.Y.S.2d 711
• Parties: Gerald F. and Ellen C. DOWNING, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

Page 711

250 N.Y.S.2d 711

43 Misc.2d 215

Gerald F. and Ellen C. DOWNING, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, Defendant.

Supreme Court, Special Term for Motions, Onondaga County.

Argued April 13, 1964.

Decided June 12, 1964.

Francis R. Belge, Syracuse, for plaintiffs.

Hancock, Dorr, Ryan & Shove, Syracuse, for defendant.

RICHARD J. CARDAMONE, Justice.

The plaintiffs move for summary judgment against the defendant insurance company pursuant to Rule 3212 of the Civil Practice Law and Rules.

It appears that Robert Levy (hereinafter called insured), purchased a liability insurance policy from Allstate Insurance Company on February 3, 1962. He was placed in the Motor Vehicle Insurance Pool and later received a policy from the American Insurance Company. The insurance purchased by the insured covered a 1957 Chevrolet automobile. On July 25, 1962, the insured went back to Allstate to obtain an FS-1, to transfer registration from the 1957 Chevrolet to a 1950 DeSoto automobile. The agent at the Allstate Office issued an FS-1 to the insured which certified that Allstate Insurance Company had issued a policy covering the insured on the 1950 DeSoto for the period from February 3, 1962, to February 3, 1963. Four days later, on July 29, 1962, the insured was involved in an accident with the plaintiffs. As a result of the accident, an action was instituted against the insured. The insured defaulted. After an inquest, held on December 13, 1963, in the Supreme Court of Onondaga County, judgment was rendered in favor of the plaintiff, Gerald F. Downing, against the insured, in the amount of $833.25, and in favor of the plaintiff, Ellen C. Downing, against the insured, in the amount of $3,583.25. A copy of the judgments and notices of entry of both judgments were served on the insured on December 14, 1963, and a copy of the judgments and notices of entry were also served on the defendant, Allstate Insurance Company, on the same day. No part of either of these judgments has been paid. Both the American Insurance Company and Allstate Insurance Company have disclaimed liability. In its answering affidavit, furnished by its attorney, the Allstate Insurance Company has attached a Form FS-25 from the New York State Motor Vehicle Bureau which indicates that on July 29, 1962, the date of the accident, the American Insurance Company had insurance in force on the DeSoto automobile owned by Robert Levy. Throughout the moving papers, the DeSoto automobile, owned by the insured, is described as a 1956 Model, whereas the FS-1 describes the automobile as a 1950 Model. The plaintiffs' attorney states in his affidavit that he has 'checked on the facts and reviewed the pictures of the automobile involved' and asserts that wherever the words '1956 DeSoto' are used, they should be corrected to read '1950 DeSoto'.

The plaintiffs, Downing, present as part of their moving papers a photostatic copy of the FS-1 issued by the Allstate Insurance Company on file in the Motor Vehicle Bureau in Albany covering the insured on the date of the accident. The defendant, Allstate, presents an FS-25, which they requested the Motor Vehicle Bureau to complete, which indicates the coverage on the insured on the date of the accident to be by Policy A-437-7909 by the American Insurance Company. It would thus appear that the Motor Vehicle Bureau, upon a complete check of their records would discover that the automobile owned by the insured was covered on the date of the accident by both Allstate Insurance Company and the American Insurance Company. The insured was originally placed in the assigned risk pool by an agent of Allstate. When the insured returned to obtain evidence of financial responsibility, in order to register another vehicle and procure license plates, he was given an FS-1 by an agent of all Allstate. This appears to have been either by error on the part of the said agent, or a result of a misrepresentation made by the insured. Those facts are not before this Court. Any attempt to formulate them would be merely speculative.

There may well be rights which Allstate has against the insured or against American Insurance Company. However, the rights of the plaintiffs, Downing, as against Allstate are absolute. (Reese v. Hartford Accident and Indemnity Co., 4 Misc.2d 947, 163 N.Y.S.2d 326 (Sup.Ct.N.Y.Co.1956), affd. 3 A.D.2d 1000(24), 165 N.Y.S.2d 430 (First Dep't. 1957).)

While the terms of a policy of insurance and the effect of them are mandated by the Statute, the rights thereunder are contractual in nature. Here, the agent of Allstate contracted with the insured and issued a certificate evidencing the insured's financial responsibility. At that point the supervening public interest that attaches to the contract of insurance fixed the rights of the public, i. e. in this case the plaintiffs, Downing, as against the issuing company. (Teeter v. Allstate Insurance Company, 9 A.D.2d 176, 192 N.Y.S.2d 610 (Fourth Dep't. 1959), affd. (9 N.Y.2d 655, 212 N.Y.S.2d 71, 173 N.E.2d 47 (1961)).

The distinctions which generally exist between the Financial Security Act (Article 6 of the Vehicle and Traffic Law) and the Safety Responsibility Act (Article 7 of the Vehicle and Traffic Law) may well have application in this case. Under the provisions of the Safety Responsibility Act, the rights of the plaintiffs are absolute (Vehicle and Traffic Law, § 345(i)(1)). Th...