Progressive Halcyon Ins. Co. v. Giacometti

• Decision Date: 30 April 2010
• Citation: 899 N.Y.S.2d 783,72 A.D.3d 1503
• Parties: PROGRESSIVE HALCYON INSURANCE COMPANY, Plaintiff-Appellant-Respondent, v. Amy G. GIACOMETTI, Marley M. Fiocco, State Farm Insurance Company, Defendants-Respondents, Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation, Central Originating Lease Trust, Defendants-Respondents-Appellants, et al., Defendant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 783
72 A.D.3d 1503

PROGRESSIVE HALCYON INSURANCE COMPANY, Plaintiff-Appellant-Respondent,
v.
Amy G. GIACOMETTI, Marley M. Fiocco, State Farm Insurance Company, Defendants-Respondents,
Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation, Central Originating Lease Trust, Defendants-Respondents-Appellants, et al., Defendant. (Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

April 30, 2010.

899 N.Y.S.2d 785

Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC, Buffalo (Kevin J. Kruppa of Counsel), for Plaintiff-Appellant-Respondent.

Mattar, D'Agostino & Gottlieb, LLP, Buffalo (Jonathan Schapp of Counsel), for Defendants-Respondents-Appellants.

John J. Delmonte, Niagara Falls, for Defendant-Respondent Amy G. Giacometti.

Law Office of John J. Fromen, Buffalo, Magavern Magavern Grimm LLP (Edward J. Markarian of Counsel), for Defendant-Respondent Marley M. Fiocco.

Hagelin Kent LLC, Buffalo (Victor M. Wright of Counsel), for Defendant-Respondent State Farm Insurance Company.

PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

72 A.D.3d 1504

These three consolidated appeals arise from an automobile accident that occurred on an interstate highway in North Carolina. Shannon M. Doyle, a defendant in appeal Nos. 2 and 3, was driving a vehicle in which there were two passengers: Amy G. Giacometti, a defendant in appeal No. 1 and the plaintiff in appeal No. 2, and Marle M. Fiocco, a defendant in appeal No. 1 (in which she was incorrectly sued as Marley M. Fiocco) and the plaintiff in appeal No. 3. For reasons that are in dispute, Doyle steered the vehicle to the left, at which time Giacometti grabbed the steering wheel and pulled it to the right. The vehicle thereafter went off the road, became airborne, and crashed among trees, injuring the three women. Doyle had leased the vehicle from Vehicle Asset Universal Leasing Trust, General Motors Acceptance Corporation (GMAC), and Central Originating Lease Trust, defendants in appeal Nos. 1 and 3 (collectively, GMAC defendants), and the vehicle was insured by Progressive Halcyon Insurance Company (Progressive), the plaintiff in appeal No. 1.

Giacometti commenced a personal injury action against Doyle in Niagara County (appeal No. 2), and Fiocco commenced a personal injury action in the same county against Doyle, the GMAC defendants, and Giacometti (appeal No. 3). Doyle also commenced a personal injury action against Giacometti in the

72 A.D.3d 1505

same county, the

899 N.Y.S.2d 786

status of which cannot be discerned from the record before us. Finally, Progressive and Doyle initially commenced a declaratory judgment action in the same county, but Progressive thereafter filed an amended complaint omitting Doyle as a plaintiff (appeal No. 1), seeking judgment declaring that it is not obligated to defend or indemnify Giacometti in the underlying personal injury actions or the GMAC defendants in connection with Fiocco's cause of action asserting that they negligently entrusted the vehicle to Doyle. By the judgment in appeal No. 1, Supreme Court, inter alia, denied that part of Progressive's motion for summary judgment declaring that Progressive is not obligated to defend or indemnify Giacometti, and denied the cross motion of the GMAC defendants for summary judgment declaring that Progressive is obligated to defend and indemnify them in connection with the negligent entrustment cause of action in the underlying personal injury action commenced by Fiocco, and for summary judgment awarding them attorneys' fees incurred by them in their defense of the declaratory judgment action. Progressive and the GMAC defendants each appeal from parts of that judgment. In her appeals from the orders in appeal Nos. 2 and 3, Doyle contends that the court erred in denying her motions for summary judgment dismissing the complaint in appeal No. 2, as well as the complaint in appeal No. 3 against her.

In appeal No. 1, we agree with Progressive that the court erred in denying that part of its motion for summary judgment declaring that it is not obligated to defend or indemnify Giacometti in the underlying personal injury actions. We therefore modify the judgment in appeal No. 1 accordingly. Progressive had disclaimed coverage with respect to Giacometti in those actions on the ground that Giacometti was not an insured person within the meaning of the terms of the policy issued to Doyle. That policy defines an "insured person" in relevant part as "any person with respect to an accident arising out of that person's use of a covered vehicle with the express or implied permission of you or a relative." We agree with Progressive that it met its burden of establishing that Giacometti had neither the express nor the implied permission of Doyle to use the vehicle. The evidence in the record, including the deposition testimony of Giacometti, establishes that she did not have express permission to take control of the steering wheel, and we further conclude on the record before us that Doyle did not impliedly consent to Giacometti's use of the vehicle in that manner ( see Allstate Ins. Co. v. Gill, 192 A.D.2d 1123, 596 N.Y.S.2d 627; Electric Ins. Co. v. Boutelle, 122 A.D.2d 332, 504 N.Y.S.2d 577). The deposition testimony of Giacometti "that [s]he grabbed the wheel to

72 A.D.3d 1506

prevent an accident does not create a question of fact on the issue of permissive use" ( Allstate Ins. Co., 192 A.D.2d at 1123-1124, 596 N.Y.S.2d 627). It is well settled that, "[w]here the provisions of [an insurance] policy 'are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement' " ( United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232, 501 N.Y.S.2d 790, 492 N.E.2d 1206; see Fulmont Mut. Ins. Co. v. New York Cent. Mut. Fire Ins. Co., 4 A.D.3d 724, 725, 772 N.Y.S.2d 406).

We reject the further contention of Giacometti and State Farm Insurance Company, a defendant in appeal No. 1 (State Farm), that any use of a vehicle is with permission of the owner pursuant to the presumption in Vehicle and Traffic Law § 388(1). Initially, we agree with Giacometti and State Farm that Doyle, as

899 N.Y.S.2d 787

the lessee of the vehicle for a period of more than 30 days, was an owner within the meaning of that statute ( see §§ 128, 388[3] ). Furthermore, it is well settled that "proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied ... Once the plaintiff meets its initial burden of establishing ownership, a logical inference of lawful operation with the owner's consent may be drawn from the possession of the operator ... This presumption may be rebutted, however, by substantial evidence sufficient to show that a vehicle was not operated with the owner's consent" ( Murdza v. Zimmerman, 99 N.Y.2d 375, 380, 756 N.Y.S.2d 505, 786 N.E.2d 440 [internal quotation marks omitted] ). Here, that presumption is inapplicable because it was overcome by substantial evidence that the use was without the permission of Doyle, and we therefore conclude that the court erred in denying that part of Progressive's motion.

We agree with the GMAC defendants in appeal No. 1, however, that the court erred in granting that part of Progressive's motion for summary judgment declaring that Progressive is not obligated to defend or indemnify them in connection with the negligent entrustment cause of action against them in the underlying personal injury action commenced by Fiocco and in denying as moot that part of their cross motion for summary judgment declaring that Progressive is obligated to defend and indemnify them in connection with that cause of action. We therefore further modify the judgment in appeal No. 1 accordingly. Although the court by its order in appeal No. 3 ultimately granted the motion of the GMAC defendants for summary judgment dismissing Fiocco's complaint against them, including the negligent entrustment cause of action against them, Progressive had commenced the action in appeal No. 1 before that motion

72 A.D.3d 1507

was granted, and the GMAC defendants expended, inter alia, significant attorneys' fees in their defense of that cause of action before it was dismissed against them. "It is well established that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that...