Eagle Ins. Co. v. Barraeau
| Decision Date | 06 May 1991 |
| Citation | 150 Misc.2d 831,569 N.Y.S.2d 1019 |
| Parties | EAGLE INSURANCE COMPANY, Plaintiff, v. Everine BARRAEAU, Joseph Joses, Jacqueline Downie and Qasim S. Ahmed, Defendants. /IAS, Part IX |
| Court | New York Supreme Court |
Stuart M. Herz, Garden City, for Eagle Ins. Co.
Billet, Becker & Brown, New York City, for Joseph Joses.
Pokorny Schrenzel & Pokorny, Brooklyn, for Jacqueline Downie.
Stanley Waxman, P.C., Great Neck, for Qasim S. Ahmed.
Ordered that this motion by Eagle Insurance Company for summary judgment in this declaratory judgment action on the ground that the plaintiff has no duty to defend or indemnify either the defendant Everine Barraeau or the defendant Joseph Joses for an accident in which Joses was involved on April 7, 1988, is determined as follows.
Plaintiff Eagle Insurance Company issued an automobile liability insurance policy to defendant Barraeau insuring her 1979 Chevrolet, for a period commencing December 31, 1987 to December 31, 1988. Eagle asserts that on February 9, 1988 it served Barraeau with a notice of termination and cancellation due to non-payment of premiums.
On or about March 15, 1988, Barraeau sold this 1979 Chevrolet to defendant Joses for use as a vehicle for hire. On March 15, 1988, Joses filed an application for insurance coverage with the New York Automobile Insurance Plan who assigned the policy to Eagle Insurance Company. On April 8, 1988, Joses registered and obtained plates for the car.
On April 7, 1988, Joses was driving this car when he was involved in a collision in which his passenger, Jacqueline Downie, was injured. Downie commenced an action against Joses, Barraeau and the driver of the other car.
As a result of the accident and lawsuit, a demand was made upon the plaintiff Eagle Insurance Company to provide a defense and to indemnify both the defendant Barraeau and the defendant Joses in accordance with the terms and conditions of their respective policies. Eagle commenced this declaratory judgment action claiming it has no duty to defend any of the named defendants under either the policy issued to Barraeau or the policy issued to Joses.
With respect to Joses, Eagle alleges that the policy was not effective until Joses registered the vehicle on April 8, 1988, which was one day after the accident. Plaintiff claims to find support for this proposition in section 11(F)(1) of the New York Automobile Insurance Plan Rules which does in fact state that "[c]overage shall become effective upon the issuance of legal registration * * *." However, immediately preceding this language is a limitation of its applicability. "The procedures hereinafter described in this subsection shall have application to all vehicle types which are eligible for assignment except public motor vehicles subject to Department of Motor Vehicle regulations governing For Hire registrants which require the issuance of an FH-1" (Section 11[F]. Apparently plaintiff does not dispute that the vehicle is a For Hire vehicle. Rather, plaintiff argues that the limitation quoted above only applies to the issuance of temporary identification cards and has nothing to do with the effective date of coverage.
The court finds this argument to be without merit. The title of Rule 11(F) is "ISSUANCE OF TEMPORARY IDENTIFICATION CARDS FOR LIABILITY INSURANCE--PROCEDURE APPLICABLE ONLY TO ELIGIBLE VEHICLES WRITTEN ON A SPECIFIED CAR BASIS". Immediately thereafter follows the limitation excluding For Hire vehicles from the procedures set forth in 11(F). Counsel's attempt to take a portion of the procedure out from this limitation must fail by the clear language of 11(F), which specifically states that the procedures set forth therein do not apply to For Hire vehicles. This becomes more evident if one continues to read the remaining sections of the Plan Rules which counsel for both Eagle and Joses have provided.
Vehicles For Hire require an FH-1 in order to obtain insurance. Insurance companies are required by section 15(B) of the Plan Rules to mail FH-1 certificates within two days after receipt of the required premium and properly completed request. Attached to Joses' opposition papers is a copy of the FH-1 issued by Eagle to Joses applicable to the motor vehicle in question. On the FH-1, it states that Eagle has issued a policy complying with section 370 of the Vehicle and Traffic Law to Joseph Joses with an effective date of March 15, 1988, which is the date Joses filed an application for coverage with the Plan. The FH-1 also indicates that it is "[n]ot acceptable to obtain registration plates after 60 days from effective date." By the terms of the FH-1, then, it was contemplated that registration would occur after the issuance and effective date of the policy.
Further support is found in section 12 of the Plan Rules, entitled "DESIGNATION OF INSURER AND EFFECTIVE DATE OF COVERAGE". Pursuant to section 12(A)(1) coverage is to be effective "[a]t the time and date specified in the notice issued by...
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