State Farm Mut. Auto. Ins. Co. v. Brown

• Decision Date: 31 October 1963
• Citation: 40 Misc.2d 694,243 N.Y.S.2d 825
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Willie BROWN, also known as James Casey, also known as James Cassion, also known as James Caison, Elaine McAvoy, Eleanor McAvoy, individually and as Guardian ad Litem of Katherine McAvoy, Charles Barth Engert and Ralph H. Engert, Defendants, and Motor Vehicle Accident Indemnity Corporation, Intervenor-Defendant.
• Court: New York Supreme Court

Page 825

243 N.Y.S.2d 825

40 Misc.2d 694

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. Willie BROWN, also known as James Casey, also known as James Cassion, also known as James Caison, Elaine McAvoy, Eleanor McAvoy, individually and as Guardian ad Litem of Katherine McAvoy, Charles Barth Engert and Ralph H. Engert Defendants, and Motor Vehicle Accident Indemnity Corporation, Intervenor-Defendant.

Supreme Court, Trial and Special Term, Ontario County.

Oct. 31, 1963.

Bayer & Vogt, Rochester, Harold C. Bayer, Rochester, of counsel, for plaintiff.

Moynihan, Scalzo, Hamsher & Robinson, Buffalo, Richard L. Robinson, of counsel, for defendant, Willie Brown.

Taylor & Taylor, Penn Yan, Daniel R. Taylor, Penn Yan, of counsel, for defendants, Engert.

Traynor & Skehan, Rochester, J. Frank Traynor, Rochester, of counsel, for intervenor-defendant, M.V.A.I.C.

Bonney & Nicit, Waterloo, John C. Nicit, Waterloo, of counsel, for defendants, McAvoy.

G. ROBERT WITMER, Justice.

In this declaratory judgment action plaintiff asks the court to determine that it is not obligated on its casualty insurance policy, issued to defendant Willie Brown, to defend him or to pay any judgment which may be recovered against him. The Motor Vehicle Accident Indemnification Corporation, hereinafter referred to as the M.V.A.I.C., has been permitted to intervene as a defendant, and it is a principal defender.

The evidence shows that on April 3, 1959 defendant Willie Brown purchased of plaintiff a policy of insurance protecting him in the operation of his automobile. He then gave his address as 114 Seneca Street, Geneva, New York, which was set forth in the policy. The policy was renewed in 1960 and again in 1961, the assured paying the premiums in cash; and in 1961 the policy covered a 1954 Cadillac automobile which the assured then owned.

On November 23, 1961 said automobile came into collision with two others in Geneva, owned by the defendants McAvoy and Engert, respectively. On November 24, 1961 defendant Willie Brown personally reported the accident to plaintiff's policy writing agent in Geneva, and stated that one James Cassion, whose address was unknown to him, was driving the car at the time of the accident, without a license, with defendant Willie Brown as a passenger therein. In the month of December 1961 Willie Brown, the assured, tole plaintiff's policy writing agent in Geneva that he was working in Buffalo and residing at 1715 Jefferson Avenue in that city.

On or about January 8, 1962 plaintiff assigned the case to one of its claims adjusters to investigate. About January 10th this adjuster went to Geneva to the scene of the accident; he got the police report of the accident; he went to the Seneca Street address of the assured in Geneva and inquired for him and James Cassion, without success, but saw the assured's automobile; and he talked with plaintiff's policy writing agent in Geneva. Before mid-April in 1962, he could not say precisely when, the adjuster personally learned of the assured's Buffalo address. The matter was referred to plaintiff's Buffalo claims office. On April 3, 1962 the insurance policy was again renewed for one year, the plaintiff charging the assured an additional premium of $10.00 because of his Buffalo residence. In April and May 1962 defendants McAvoy and Engert began separate actions against defendant Willie Brown, alias James Cassion or Caison.

An agent from plaintiff's Buffalo office, Mr. Weir, interviewed the assured at the latter's Buffalo residence on June 6, 1962, took pictures of him and had him sign a statement, exhibit 6, and on June 7, 1962 had him sign an authorization and non-waiver agreement, exhibit 8. At this time the assured repeated that James Cassion or Caison was driving the car at the time of the accident, and he stated that Cassion was his cousin, in military service in Florida, and that he, the assured, had had his driver's license revoked for six months for permitting an unlicensed minor to drive his car. He further stated that he had different people drive the car for him. On November 2, 1962 said Mr. Weir again interviewed the assured at the latter's Buffalo residence and had him sign exhibit 7, wherein he stated that he always paid his insurance premiums in person with cash at the office of plaintiff's policy writing agent in Geneva. Plaintiff's witness, Mrs. Ruth Furano, confirmed this statement.

In February 1963 plaintiff began this action for judgment declaring that defendant Willie Brown and James Cassion or Caison were names for one and the same person who was plaintiff's assured under the policy herein, that defendant breached the condition of the policy requiring that the assured cooperate with the plaintiff, and that hence plaintiff need not defend the assured against said actions by defendants McAvoy and Engert, nor pay any judgment obtained by them against the assured. Plaintiff contends that it has established that the assured failed to co-operate as required by the policy.

It is true that the assured lied to his insurer, the plaintiff; and for that he should not be given a medal. Indeed, giving false evidence to the company as to the identity of the driver has been held to constitute a breach of the cooperation clause (National Grage Mutual Liability Co. v. Fino, 13 A.D.2d 10, 212 N.Y.S.2d 684; and see, likewise, where misrepresentation was made as to the owner's consent to driver's use of his car, United States Fidelity & Guaranty Co. v. von Bargen, 7 A.D.2d 872, 182 N.Y.S.2d 121, affd. 7 N.Y.2d 932, 197 N.Y.S.2d 736, 165 N.E.2d 579; Lumbermens Mutual Casualty Company v. Goldwasser, 7 A.D.2d 849, 181 N.Y.S.2d 439). But did the assured's lie, under all the circumstances of this case, constitute a failure to cooperate? In view of the fact that the alleged driver was non-existent and all others involved were revealed and no facts were withheld, was the misrepresentation material in this instance? 'Co-operation * * * (means) that there shall be a fair and frank disclosure of information reasonably demanded by the insurer to enable it to determine whether there is a genuine defense.' (Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 276, 160 N.E. 367, 369, 72 A.L.R. 1443.) 'To amount to a breach, the attitude of the assured must be one 'of willful and avowed obstruction." (American Sur. Co. of New York v. Diamond, 1 N.Y.2d 594, 599, 154 N.Y.S.2d 918, 923, 136 N.E.2d 876, 880).

Here, the day after the accident the assured went to the office of plaintiff's agency that sold him the policy, and he reported the accident fully and truthfully, except to say that another person, in fact non-existent, was driving his automobile, in which he was a passenger. It was apparent that his motive in thus lying was to protect himself from the consequences of driving without a license. He did not intend not to cooperate with his insurer, and in fact there is no proof that he concealed anything about the facts of the...