Morette v. Kemper, Unitrin Auto & Home Ins. Co.

• Decision Date: 10 January 2012
• Citation: 941 N.Y.S.2d 440,2012 N.Y. Slip Op. 22007,35 Misc.3d 200
• Parties: Laraine Susan MORETTE, Individually; the Estate of Anthony T. Morette, by Laraine Susan Morette, Executrix; and Kristi Marie Morette, Plaintiffs, v. KEMPER, UNITRIN AUTO AND HOME INSURANCE COMPANY, INC., and Merchants Mutual Insurance Co., Defendants.
• Court: New York Supreme Court

2012 N.Y. Slip Op. 22007
35 Misc.3d 200
941 N.Y.S.2d 440

Laraine Susan MORETTE, Individually; the Estate of Anthony T. Morette, by Laraine Susan Morette, Executrix; and Kristi Marie Morette, Plaintiffs,
v.
KEMPER, UNITRIN AUTO AND HOME INSURANCE COMPANY, INC., and Merchants Mutual Insurance Co., Defendants.

Supreme Court, Essex County, New York.

Jan. 10, 2012.

[941 N.Y.S.2d 441]

Breedlove & Noll, LLP (Carrie McLoughlin Noll, Esq., of counsel), Clifton Park, for plaintiffs.

Friedman, Hirschen & Miller LLP (Carolyn B. George, Esq., of counsel), Albany, for defendant Kemper, Unitrin Auto and Home Ins. Co. Costello, Cooney & Fearon, PLLC (Maureen G. Fatcheric, Esq. and Kristin L. Walker, Esq., of counsel), Camillus, for defendant Merchants Mutual Insurance Co.

RICHARD B. MEYER, J.

Motion and cross-motion by defendant Merchants Mutual Insurance Co. (Merchants), and cross-motion by defendant Kemper, Unitrin Auto and Home Insurance Company, Inc. (Kemper), for summary judgment dismissing the complaint.

A.

On December 2, 2009, at approximately 5:00 a.m., the decedent Anthony T. Morette (Morette) was allegedly struck by an

[941 N.Y.S.2d 442]

unidentified motor vehicle in a hit and run accident while he was jogging near the intersection of New York State Route 374 and Shore Airport Road in the town of Ticonderoga, Essex County. Morette died a short time later, survived by his wife, plaintiff Laraine Susan Morette, and his daughter, plaintiff Kristi Marie Morette. At the time of the incident, a commercial auto insurance policy was in effect issued by Merchants to “A.T. Morette Electric LLC”, a limited liability company of which Morette was the sole member. Also in force was an automobile liability policy issued by Kemper to Morette and his wife. Both policies provided supplementary uninsured motorists (SUM) coverage.

In June 2010 plaintiffs commenced this action against Merchants and Kemper seeking a declaratory judgment that both insurers are liable for the payment of SUM coverage arising out of Morette's death. The defendants now move for summary judgment dismissing the complaint. Merchants asserts that the SUM coverage in its policy does not apply because its named insured was a limited liability company, not Morette. Also, Merchants and Kemper both contend in their respective cross-motions that witnesses have identified two possible vehicles at the scene around the time of the accident and therefore conditions precedent to SUM coverage—that neither the owner nor driver of the offending vehicle can be identified and plaintiffs have exhausted all reasonable efforts to identify such vehicle and driver—cannot be met. Specifically, the defendants contend that sworn statements obtained by law enforcement from Robert Johnston (Johnston) and Christopher Steady (Steady), as well as Steady's deposition testimony as a non-party witness, establish that the owner and driver can be identified.

Both Johnston and Steady are employees of Cleveland Logging, which allegedly is partially owned by Steady's mother, who were delivering wood to the International Paper Company Mill in Ticonderoga on December 2, 2009. Johnston gave two statements to law enforcement, one on December 8, 2009, just six days after Morette's death, and the other on August 17, 2010 after he had left the employ of Cleveland Logging “because of family issues”. In his initial statement, Johnston said that while he was at the mill waiting to unload his truck Steady called him on a cell phone at approximately 5:20–5:25 a.m. and “sounded very excited on the phone”. Johnston “could not really understand him” and “could not make out a lot of what was said”. In his later statement, Johnston provides additional, possibly inconsistent, details. He states that after he unloaded his truck and left the mill he noticed that Steady had called Johnston's cell phone. This was “at about 5:35–5:40 a.m.” Johnston described Steady as “very anxious, very nervous, and act[ing] paranoid”, but admits he “couldn't understand him”. He said that Steady “called me on the CB radio and all I heard was an accident down the road”. Johnston also relates a subsequent conversation with Steady in which Steady told him about observing “a red car” go “through the stop sign” at the intersection of Shore Airport Road and State Route 22 and “saw the lights bouncing on the car and the car [stop]”. He claims that Steady also told him that he stopped his truck, got out, spoke with the driver of that car, a woman with blonde hair, and she gave Steady “all of her information” before “they both left the scene ... leaving the body in the roadway”. Johnston opines at the end of his statement that he believes Steady was involved in the accident and that Steady's story did not make sense.

[941 N.Y.S.2d 443]

In Steady's statement to law enforcement dated December 5, 2009, he relates that he was traveling south on state route 74 and 22 when he saw a vehicle go through “the stop sign coming off from Shore Airport Rd” travelling “about 15 miles per hour”. He described seeing “the headlights bounce”, “the brake lights come on, the back up lights come on then the brake lights went off”. Steady states that the vehicle “looked like a gold Mazda MPV but” he was “not exactly sure”. He got out of his vehicle and observed a body lying in the road near the rear passenger side of the other car. He spoke to the driver, who he described as “about 5'4? or 5'5?[,] about 130 to 140 pounds”, with “dark hair just below her shoulders” and wearing “a sport blazer and pleated slacks”. After unsuccessfully trying to calm her down and get her name, he wrote his name, cell number and other information on a piece of paper and gave it to her in case anyone needed to get in touch with him. At this time, other vehicles were arriving at the scene. He walked over to his truck to get his cell phone. Once in the truck, he observed other people at the scene with cell phones, and assuming they were calling 911 he drove to the mill to unload. On July 15, 2011, while Merchant's initial motion for summary judgment was pending, Steady testified at a deposition as a non-party witness that he observed a “goldish color” vehicle that he believed was a Mazda MPV van fail to stop for a stop sign and cross the intersection of the Shore Airport Road and New York State Route 74 and 22. Steady testified that there were no other vehicles in the area. He testified that he saw the headlights of the Mazda bounce, its brake lights come on, and the back up lights come on. Steady claims that after getting out of his vehicle he observed a body on the ground near the rear bumper of the Mazda. The operator was a female with “brunette” and dressed in a “dress jacket” and pleated pants. He believes she was on her phone.

The Court has considered the following papers in connection with the motion and cross motions: notice of motion dated June 20, 2011 supported by an affidavit of Maureen G. Fatcheric, Esq. sworn to June 20, 2011, with exhibits A through I, affidavit of Rosemary Bravetti sworn to June 10, 2011, with exhibits A through B, and memorandum of law dated June 20, 2011; affidavit of Carolyn B. George, Esq., sworn to July 26, 2011 in opposition to motion; reply affidavit of Maureen G. Fatcheric, Esq. sworn to September 8, 2011; cross-notice of motion dated September 14, 2011, supported by an affidavit of Carolyn B. George, Esq., sworn to September 13, 201 with exhibits A through F; notice of cross-motion dated September 26, 2011, supported by an affidavit of Kristin L. Walker, Esq. sworn to September 26, 2011 with exhibits A and B; affirmation of Carrie McLoughlin Noll, Esq. dated November 11, 2011 with exhibits A through E and memorandum of law dated November 11, 2011; reply affidavit of Kristin L. Walker, Esq. sworn to November 17, 2011.

B.

It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues ( Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” ( Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented ( Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” ( Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392),

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and “issue-finding, rather than issue-determination, is the key to the procedure' ( Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d 322, 324)” (...