Nat'l Liab. & Fire Ins. Co. v. Croxton
| Decision Date | 13 June 2013 |
| Docket Number | Index 22986/12E |
| Citation | 2013 NY Slip Op 34249 (U) |
| Parties | National Liability & Fire Insurance Company, Petitioner, v. Harold Croxton Respondent, Ricky Watson, Salanr Trucking Corp., Gramercy Produce, Allstate Insurance Company, OneBeacon America Insurance Company, Utica National Assurance Company, John Doe 1-10 and/or Jane Doe 1-10 and XYZ Insurance Corporations 1-10 (said names being fictitious and used to designate person(s) or entity(ies) whose real identities are as yet unknown. Proposed Additional Respondents. |
| Court | New York Supreme Court |
DECISION AND ORDER
HON ALEXANDER W. HUNTER, JR.
The application by petitioner for an order pursuant to C.P.L.R 7503 permanently staying the arbitration attempted to be had by respondent or in the alternative, temporarily staying the arbitration pending a framed issue hearing, is granted to the extent that a framed issue hearing will be held. Proposed additional respondents Ricky Watson, Salanar Trucking Corp. s/h/a Salanr Trucking Corp. ("Salanar"), Gramercy Produce, and Allstate Insurance Company ("Allstate") are hereby added to this proceeding for purposes of the framed issue hearing. Petitioner's application for an order directing respondent to provide pre-arbitration discovery is reserved pending the outcome of the framed issue hearing.
Pursuant to a Request for Uninsured Motorist Arbitration, dated November 8, 2012, respondent demands arbitration under a policy of insurance issued to Mansour Al-Kabyalee under policy number 521 29981 (the "subject policy"). Respondent alleges that he sustained personal injuries in a motor vehicle accident that occurred at or near the intersection of Faile Street and Spofford Avenue in Bronx County on July 13, 2012.
Petitioner asserts that the arbitration sought to be had by respondent should be permanently stayed because 1) respondent fails to identify a correct policy number in his demand for arbitration and 2) the offending vehicle was insured on the date of the accident. Petitioner refers to the police accident report which indicates that the offending vehicle was registered to Salanar and insured by OneBeacon America Insurance Company ("OneBeacon"), as denoted by insurance code 089. (amended petition exhibit B). A Department of Motor Vehicles ("DMV") registration record expansion indicates that the offending vehicle was insured from February 22, 2010 through at least August 20 2012 by OneBeacon. (amended petition exhibit E). Petitioner notes that there is no cancellation of the OneBeacon policy listed in the DMV registration record. The DMV registration record further indicates that there may be insurance available from Utica National Assurance Company ("Utica"). (amended petition exhibit E).
Petitioner filed an amended petition on January 9, 2013. In the amended petition, petitioner's counsel asserts that he recently spoke with Joseph Alfassa, Sr., an insurance broker for Allstate. Mr. Alfassa advised that Salanar was insured by Allstate on the date of the accident under policy number 048287426 (the "Allstate policy"). Mr. Alfassa further reported that the Allstate policy had not been cancelled and that Allstate would investigate the details of the accident.
Based on the foregoing, petitioner requests that the arbitration sought by respondent be permanently stayed since there is available coverage for the offending vehicle. In the alternative, petitioner requests an order temporarily staying the arbitration pending a framed issue hearing to determine the issue of coverage with the addition of proposed additional respondents. Should this court determine that respondent is entitled to proceed to arbitration, petitioner seeks an order directing respondent to supply discovery pursuant to the subject policy.
Respondent does not oppose temporarily staying the arbitration pending a framed issue hearing. Respondent's counsel asserts that he received correspondence from OneBeacon, Utica, and Allstate informing him that all three insurance carriers were disclaiming coverage. (respondent's exhibit B, C, and D).
With respect to petitioner's demand for discovery, respondent submitted authorizations to obtain copies of respondent's medical records, no-fault records, diagnostic records, and films. Respondent notes that he has already appeared for an independent medical examination ("IME") on or about December 19, 2012. The IME was conducted by Dr. Janice Salayka, a physician of petitioner's choosing. Due to limited resources, respondent requests that this court deny petitioner's application for additional IMEs. In addition, respondent is willing to submit to an examination under oath.
Utica asserts that none of the evidence submitted by petitioner indicates that Utica insured the offending vehicle. However Utica admits that it did issue a commercial automobile liability policy to Salanar under policy number 4237839 for the period August 15, 2009 through August 15, 2010 (the "Utica policy"). The Utica policy was cancelled due to non-payment on January 25, 2010, effective February 10, 2010. Utica avers that its cancellation of the liability policy was in full compliance with Vehicle and Traffic Law § 313. Therefore, Utica properly disclaimed coverage for the offending vehicle. In support, Utica submits copies of the Notice of Cancellation and the Certificate of Mailing. (Utica's exhibits A and B). Although the DMV registration record indicates that Utica's initial attempts to file the Cancellation Notice was rejected, Utica surmises that this was due in part to the fact that there are two named insureds on the Utica policy. The DMV registration record also indicates that the Utica policy was replaced by a policy issued by OneBeacon. As such, there is no issue with respect to Utica that it insured the offending vehicle on the date of the accident.
OneBeacon opposes petitioner's application in its entirety on the ground that OneBeacon did not insure the offending vehicle on the date of the accident. The Hanover Insurance Group ("Hanover"), the claim administrator for OneBeacon, issued a commercial automobile policy under policy number 713-00-93-56-0000 to Salanar for the period February 22, 2010 to February 22, 2011 (the "OneBeacon policy"). (OneBeacon's exhibit A). On November 24, 2010, Hanover sent Salanar a non-renewal notice indicating that OneBeacon would no longer provide coverage for non-specialty commercial lines businesses, including the...
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