Hamilton v. Khalife

• Decision Date: 24 December 2001
• Citation: 289 A.D.2d 444,735 N.Y.S.2d 564
• Parties: LYNDA HAMILTON, Plaintiff,<BR>v.<BR>MICHAEL KHALIFE, Respondent-Appellant, BMW FINANCIAL SERVICES NA, INC., Appellant-Respondent, et al., Defendants.<BR>GULF INSURANCE COMPANY, Appellant-Respondent,<BR>v.<BR>MICHAEL KHALIFE, Respondent-Appellant. (First Intervening Action.)<BR>STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellants,<BR>v.<BR>GULF INSURANCE COMPANY, Respondent. (Second Intervening Action.)
• Court: New York Supreme Court — Appellate Division

289 A.D.2d 444

735 N.Y.S.2d 564

LYNDA HAMILTON, Plaintiff,

v.MICHAEL KHALIFE, Respondent-Appellant, BMW FINANCIAL SERVICES NA, INC., Appellant-Respondent, et al., Defendants.

GULF INSURANCE COMPANY, Appellant-Respondent,

v.MICHAEL KHALIFE, Respondent-Appellant. (First Intervening Action.)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellants,

v.GULF INSURANCE COMPANY, Respondent. (Second Intervening Action.)

Decided December 24, 2001.

Ritter, J. P., Goldstein, H. Miller and Townes, JJ., concur.

Ordered that the order is affirmed, without costs or disbursements.

This appeal arises from an automobile accident on January 11, 1995, involving the plaintiff Lynda Hamilton who was struck by a vehicle driven by the defendant Michael Khalife. Khalife leased his car from the defendant BMW Financial Services NA, Inc. (hereafter BMW).

Khalife's lease with BMW required that he obtain certain minimal liability coverage, and he exceeded that requirement by securing a $300,000 State Farm Mutual Automobile Insurance Company (hereafter State Farm Mutual) primary liability policy, as well as a separate $2,000,000 State Farm Fire and Casualty Company (hereafter State Farm Fire) excess liability policy. BMW was insured by Gulf Insurance Company (hereafter Gulf), with a "Lessor's Contingent and Excess Liability Policy." The Gulf policy was issued contingent upon BMW securing $100,000/$300,000 coverage from the lessees of its leased vehicles and insured the "Difference to $5 million." The policy provided for a $300,000 per occurrence deductible.

On September 14, 1998, the plaintiff's action to recover damages for personal injuries was settled in open court for $3,000,000. $100,000 was paid by the insurance carrier for the defendant Loretta Schindelman, who is not a party to this appeal. State Farm Mutual paid its limit of $300,000 and State Farm Fire paid its limit of $2,000,000, both on behalf of Khalife. BMW paid $300,000, representing the deductible amount in the Gulf policy, and Gulf paid $300,000 on behalf of BMW. At the time of settlement, Khalife objected to the amount to the extent that it exceeded $2,300,000.

BMW asserts a cross claim for contractual indemnification against Khalife, based upon a provision of its lease to Khalife, which requires the lessee to "hold [BMW] harmless and indemnify [BMW] for all liability, loss and expense arising from the use, condition or ownership of the Vehicle." Gulf, as subrogee of BMW on its indemnification claim, also seeks indemnification against Khalife. State Farm Mutual and State Farm Fire allege that Khalife was an insured under the Gulf policy, and that said policy provided coprimary coverage with the State Farm Mutual policy, thereby entitling them to recover the total sum of $2,126,000 from Gulf. Khalife claims...