Merchants Mut. Cas. Co. v. Wildman
| Decision Date | 27 December 1960 |
| Parties | MERCHANTS MUTUAL CASUALTY COMPANY, Appellant, v. Claude G. WILDMAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Robert Hill Nix, New York City, for appellant.
Zuckerman & Haber, Mineola, for respondent; Bernard Meyerson, Brooklyn, of counsel.
Before NOLAN, P. J., and BELDOCK, CHRIST, PETTE and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action for a declaratory judgment to determine plaintiff's liability under the 'uninsured automobile endorsement' on its automobile liability insurance policy issued to defendant, and to determine whether it is obliged to proceed with the arbitration of a claim under said endorsement, the plaintiff appeals from a judgment of the Supreme Court, Nassau County, rendered March 11, 1960 (and entered March 18, 1960), after a nonjury trial, dismissing the complaint and, in effect, holding that plaintiff is liable and that it is required to proceed with the arbitration of the claim.
Judgment affirmed, with costs.
In our opinion, plaintiff is estopped from disclaiming liability. With full knowledge of defendant's alleged breach of the policy conditions, plaintiff demanded and received: (1) a copy of the report of the defendant's physical examination in his action against one, Matthews, an insured motorist--an action which defendant had settled without plaintiff's consent; and (2) a physical examination of the defendant by its own doctor. Plaintiff had no right to such report and to such examination except under a valid policy which covered the claim then being asserted by defendant under the 'uninsured automobile endorsement' based on the negligence of one Negron, an uninsured motorist. By thus proceeding plaintiff must be deemed to have waived its right to reject the claim and to be estopped from now disclaiming its liability under the policy (cf. Draper v. Oswego County Fire Relief Ass'n, 190 N.Y. 12, 15, 82 N.E. 755, 756; Gibson Electric Co. v. Liverpool & London & Globe Ins. Co., 159 N.Y. 418, 426-427, 54 N.E. 23, 26; Kiernan v. Dutchess County Mut. Ins. Co., 150 N.Y. 190, 194-195, 44 N.E. 698, 699-700). NOLAN, P. J., and BELDOCK and PETTE, JJ., concur.
BRENNAN, J., not voting.
CHRIST, J., dissents and votes to reverse the judgment in favor of defendant and to grant judgment in favor of the plaintiff-insurer, declaring that plaintiff is not liable to defendant on its policy under the 'uninsured automobile endorsement' and that it is not required to proceed with the arbitration of the claim based on such endorsement, with the following memorandum:
Under the caption 'Exclusions' in the endorsement in question, it is provided in section (b) that the endorsement does not apply to bodily injury to the insured with respect to which the latter shall, without the written consent of the insurer, 'make any settlement with or prosecute to judgment any action against any person * * * who may be legally liable therefor.'
Under the caption 'Conditions' in the endorsement, it is provided in section 2 that if the insured 'shall institute any legal action for bodily injury * * * against any owner of or any other person operating an automobile involved in the accident, a copy of the summons and complaint or other process served in connection with legal action shall be forwarded immediately to the * * * [insurer] by the insured or his representative'.
These provisions are conditions, for breach of which by the insured the latter loses his right to recover from the insurer on this endorsement (cf. Draper v. Oswego County Fire Relief Ass'n, 190 N.Y. 12, 18, 82 N.E. 755, 757, supra). These conditions, together with the provisions in section 6 (under the caption 'Conditions') which give plaintiff rights in the nature of subrogation as to claims the insured might have for his injuries against 'the owner or operator of any automobile involved in the accident,' plainly contemplate settlements with and legal actions against any owner or operator of any automobile involved in the accident, including other insured motorists as well as uninsured motorists.
In my opinion, defendant failed to sustain the burden of proving that plaintiff, by any act or course of conduct subsequent to acquiring knowledge of his (defendant's) breach of the conditions, waived or estopped itself from asserting its right to disclaim liability on the ground of his breach of such conditions.
The accident occurred on January 1, 1957. Three automobiles were involved in the accident: (1) defendant's automobile which was covered by plaintiff's insurance policy; (2) another insured automobile owned by one Matthews; and (3) an uninsured automobile owned by one Negron. Defendant commenced an action against Matthews on February 14, 1957, by service of summons and complaint. That action was settled in March, 1958. Although defendant's report of the accident reached plaintiff within two days thereafter, no notice of the action against Matthews was given to plaintiff until March or April, 1958. The summons and complaint in that action were never forwarded to plaintiff; and notice of the settlement with Matthews was not given to plaintiff before April 30, 1958, when plaintiff received defendant's executed proof of loss based upon the 'uninsured automobile endorsement' on the policy.
Thereafter, the following events occurred: (1) defendant's attorney submitted to plaintiff, as its request, a report of a physical examination of defendant which had been made by Matthews' insurance carrier or its physician; (2) defendant submitted himself to a physical examination by a physician designated by plaintiff; (3) each of the parties, pursuant to the policy provisions, appointed an appraiser for the purpose of appraising the amount due defendant because of his injuries; and (4) oral negotiations ensued between representatives of the plaintiff and defendant.
It is undisputed that the appraisers were to meet on September 19, 1958, and that two days before such date the plaintiff withdrew the appointment of its appraiser, disclaimed liability on the policy endorsement in question, and commenced this action to determine the rights of the parties under the policy.
The insurance policy contains two provisions as to waiver. Condition 23, which is part of the basic or main part...
To continue reading
Request your trial
-
Motorists Mut. Ins. Co. v. Tomanski
...ten years earlier in fact situations involving concurrent negligence of two motor vehicles. See Merchants Mutl. Casualty Co. v. Wildman (1960), 12 A.D.2d 664, 209 N.Y.S.2d 242; Rosenbaum v. American Surety Co. (1961), 12 A.D.2d 886, 209 N.Y.S.2d In a later New York case, where a covered veh......
-
Royal Indem. Co. v. Kay
...2 Dept., 22 A.D.2d 906, 255 N.Y.S.2d 545; Merchants Mutual Casualty Co. v. Wildman, 21 Misc.2d 1073, 197 N.Y.S.2d 925, aff'd 12 A.D.2d 664, 209 N.Y.S.2d 242, aff'd 9 N.Y.2d 985, 218 N.Y.S.2d 63, 176 N.E.2d 513, Insurance Law, Sec. 167, subd. 8), and if the affected person was prejudiced by ......
-
Allstate Ins. Co. v. Gross
...Cas. Ins. Co., 269 App.Div. 31, 53 N.Y.S.2d 677; Merchants Mut. Cas. Co. v. Wildman, 21 Misc.2d 1073, 197 N.Y.S.2d 925, affd. 12 A.D.2d 664, 209 N.Y.S.2d 242, affd. 9 N.Y.2d 985, 218 N.Y.S.2d 63, 176 N.E.2d Given, then, the statutory plan to protect the injured parties and their alternative......
-
Sowell (Sowell's Estate) v. Travelers Indem. Ins. Co., 43931
...Co., 189 So.2d 907 (Fla.App); Rosenbaum v. American Surety Co., 12 A.D.2d 886, 209 N.Y.S.2d 94 (N.Y.); Merchants Mutual Casualty Co. v. Wildman, 12 A.D.2d 664, 209 N.Y.S.2d 242 (N.Y.). The demurrer is ...