Fafinski v. Reliance Ins. Co.

• Decision Date: 29 January 1985
• Citation: 106 A.D.2d 88,484 N.Y.S.2d 729
• Parties: Daniel R. FAFINSKI, Respondent, v. RELIANCE INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 729

484 N.Y.S.2d 729

106 A.D.2d 88

Daniel R. FAFINSKI, Respondent, v. RELIANCE INSURANCE COMPANY, Appellant.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1985.

Maloney, Gallup, Roach, Brown & McCarthy, P.C., Buffalo, for appellant (T. Alan Brown, Buffalo, of counsel).

Spoto & Slater, Jamestown, for respondent (Richard V. Slater, Jamestown, of counsel).

Before HANCOCK, J.P., and DENMAN, BOOMER, GREEN and O'DONNELL, JJ.

HANCOCK, Justice Presiding.

In a jury trial against defendant insurance company which disclaimed no-fault coverage because of plaintiff's intoxication at the time of the automobile accident in which he was injured, the court refused to permit proof of the result of a blood alcohol test routinely given on plaintiff's hospital admission because plaintiff had not consented to it. From a judgment for the amount of economic loss, defendant appeals.

Plaintiff sustained serious injuries when the automobile he was driving left the highway on the wrong side and collided with a guardrail. He was taken to the hospital in a semi-conscious condition where he received emergency treatment. For purposes of treatment and without the plaintiff's consent, the emergency room physician ordered a blood alcohol test which showed that plaintiff had .276 percent by weight of alcohol in his blood and indicated, in the opinion of a treating physician, that plaintiff was intoxicated. Plaintiff was never arrested or prosecuted for driving while intoxicated or while his ability was impaired (see Vehicle and Traffic Law §§ 1192, 1194). Defendant, the no-fault insurer covering the automobile, refused plaintiff's claim for first-party benefits stating that the claim was within the policy exclusion provisions because plaintiff was injured "as a result of operating a motor vehicle while in an intoxicated condition or while his ability to operate such vehicle impaired by the use of a drug (within the meaning of Section 1192 of the New York Vehicle and Traffic Law)". During the jury trial of the ensuing lawsuit, defendant sought to prove the result of the test and that it had been given at a doctor's direction through entries in the hospital record and testimony of a nurse, of a medical technician and of two physicians. Relying on Provenzo v. Sam (27 A.D.2d 442, 280 N.Y.S.2d 308, revd. on other grnds. 23 N.Y.2d 256, 296 N.Y.S.2d 322, 244 N.E.2d 26), the court held that although the hospital record was admissible, defendant could not show the result of the blood alcohol test as evidence of plaintiff's intoxication because plaintiff had not expressly consented to it.

There should be a reversal and a new trial. We hold that the result of a blood alcohol test may be admitted on the issue of intoxication in litigation involving an exclusion in a no-fault policy as in other civil litigation provided, of course, that the proper foundation is laid (see Rucki v. Insurance Co. of North Amer., 104 Misc.2d 236, 428 N.Y.S.2d 176; McCormick on Evidence § 205, p 616).

Plaintiff advances two propositions to sustain trial term's determination:

(1) that the requirements contained in section 1194 of the Vehicle and Traffic Law ¹ for admissibility of blood alcohol tests in criminal prosecutions under section 1192, concededly not met here, apply to the admission of such test results when offered as proof that a claim is within the policy exclusion; and

(2) that even if the admissibility requirements of section 1194 do not apply, the result is not admissible for such purpose because plaintiff did not expressly consent to the administration of the test. ²

For the reasons set forth below, we reject both propositions.

I

We address first the contention that the result of the blood test should not be admitted because the test was not taken in compliance with section 1194 of the Vehicle and Traffic Law. The argument depends upon the reference to section 1192 of the Vehicle and Traffic Law in the policy exclusion and in the governing statutory provision (Insurance Law § 5103formerly § 672) and the conclusion posited by plaintiff that the requirements for the admission of blood tests in section 1194 (although not referred to) should be read into the policy and the statute. If plaintiff's position is correct, the test result must be excluded here because the test was not administered at the direction of a police officer and within two hours after plaintiff had been placed under arrest or had taken a breath test indicating consumption of alcohol (Vehicle and Traffic Law § 1194 see People v. Moselle, 57 N.Y.2d 97, 454 N.Y.S.2d 292, 439 N.E.2d 1235).

The policy exclusion which tracks almost verbatim the language in the statute is as follows: "This coverage does not apply to personal injury sustained by * * * any person as a result of operating a motor vehicle while in an intoxicated condition or while his ability to operate such vehicle is impaired by the use of a drug (within the meaning of Section 1192 of the New York Vehicle and Traffic Law) * * *." It is apparent at the outset that the plain meaning of the exclusion as worded in the policy and the statute does not support plaintiff's position. There is no reference to section 1194 or any section in article 31 of the Vehicle and Traffic Law ("Reckless Driving and Driving While In an Intoxicated Condition") other than section 1192. Because the only section referred to is section 1192, one may surmise that the omission of the others was intentional (see McKinney's Cons. Laws of N.Y., Book 1, Statutes § 240).

Despite the omission of any reference to section 1194, plaintiff argues that the public policy underlying the enactment of the "Comprehensive Motor Vehicle Insurance Reparations Act" and the legislative purpose as reflected in a reading of the entire statute (Insurance Law, Article 51) and in the available legislative history compel the conclusion that the requirements of section 1194 of the Vehicle and Traffic Law should be engrafted onto the exclusionary provision. We find nothing to support the argument. On the contrary, it appears that the legislative purposes behind the exclusion of injuries sustained "as a result of operating a motor vehicle while in an intoxicated condition or while ability to operate such vehicle is impaired" (Insurance Law § 5103), as with the exclusions for operating a motor vehicle in a race or speed test, operating a stolen motor vehicle and operating an uninsured vehicle (see Insurance Law § 5103), are to keep premiums down and to deny coverage for losses resulting from violations of the law see generally, Montgomery v. Daniels, 38 N.Y.2d 41, 62, 378 N.Y.S.2d 1, 340 N.E.2d 444. The Governor's Memorandum accompanying the enactment of the no-fault law indicates that one of its purposes was reduction of premiums (see Governor's Memorandum, NY Legis Ann, 1973, p 298). Reading the stringent requirements of section 1194 into the policy and statutory exclusion clearly would not further these purposes.

II

Nor can we accept plaintiff's alternative position (adopted by the trial court) that irrespective of the applicability of section 1194 the test result is inadmissible because plaintiff did not give his express consent to the test. The applicable authorities do not support it.

The general rule is that "the link between high blood alcohol levels and intoxication as well as the accuracy of measurements made under ideal conditions is well established, under the usual principles governing scientific evidence, the test results should be admissible if founded on a showing of authenticity and satisfactory care in the collection of...