Suba v. State Farm Fire and Cas. Co.

• Decision Date: 23 August 1985
• Citation: 129 Misc.2d 839,494 N.Y.S.2d 620
• Parties: Patricia SUBA, as Parent and Natural Guardian of Laura N. Suba, an Infant under the age of 14 years, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
• Court: New York Supreme Court

Page 620

494 N.Y.S.2d 620

129 Misc.2d 839

Patricia SUBA, as Parent and Natural Guardian of Laura N Suba, an Infantunder the age of 14 years, Plaintiff, v.STATE FARM FIRE AND CASUALTY COMPANY, Defendant.

Supreme Court, Oneida County Aug. 23, 1985.

Ralph W. Fusco, Utica, for plaintiff.

Louis S. Petrone, Utica, for defendant.

DECISION

THOMAS ALOI, Justice.

This is an action brought pursuant to former Insurance Law § 167(1)(b)(now § 3420[a][2] ) against an insurer to recover the amount of an unsatisfied personal injury judgment recovered by plaintiff against a party to whom defendant had issued a homeowners policy in effect when the injuries sued for were sustained.

On February 20, 1982Laura N. Suba, an infant seven years old, sustained serious injuries while skiing with her father, William B. Suba, at a ski area within the City of Utica.Plaintiff, Laura's mother, brought an action against the City, alleging negligence by it in the maintenance of the ski slope, which terminated in April, 1984 in a verdict of no cause for action.Thereupon, plaintiff commenced an action against the child's father, William Suba, alleging negligence by him in the adjustment of the safety bindings on Laura's skis.The father gave notice of the action to defendant insurer; after the insurer disclaimed liability under the homeowners policy which had been issued by it to the father, the father defaulted in the negligence action against him, and, following an inquest to fix damages, a judgment in the amount of $75,000 plus costs was entered in favor of plaintiff.When the judgment remained unsatisfied for more than 30 days, plaintiff brought this action against the father's insurer, which is defending on the ground that the claim out of which the action arises is excluded from coverage by the terms of the policy issued to William Suba.

Plaintiff has moved for summary judgment in the amount of the outstanding judgment recovered against the named insured, and defendant insurer has cross-moved for summary judgment of dismissal.

The homeowners policy which is the predicate for plaintiff's action describes two kinds of liability coverage afforded by it: "Coverage L--Personal Liability" and "Coverage M--Medical Payments to Others".(There has been no question raised but that it is under one or both of these coverages that plaintiff seeks to hold the insurer liable.)The portion of the policy which sets out exclusions states:

"1.Coverage L--Personal Liability and Coverage M--Medical Payments to Others do not apply to:

* * *

* * *

g. bodily injury to you or any insured within the meaning of part (a) or (b) of the definition of insured."

Parts (a) and (b) of the definition of insured contained in the policy provide:

"3. 'insured' means you and the following residents of your household:

a. your relatives

b. any other person under the age of 21 who is in the care of any person named above."

The foregoing language clearly excludes the bodily injury sustained by the insured's infant daughter, Laura--whose residence as a member of his household is undisputed--from the coverage for Personal Liability and for Medical Payments to Others otherwise provided by the policy.

In an effort to avoid this result, plaintiff asserts that the policy exclusion, insofar as it withholds coverage for liability of the insured to his daughter arising out of the skiing accident in question, is against public policy.She points to no statutory provision which expressly prohibits intrafamily exclusio in homeowners policies, but relies on the decision of Allstate Insurance Company v. Anzalone, 119 Misc.2d 222, 462 N.Y.S.2d 738, an insurer's declaratory judgment action arising out of injuries sustained by the son of an insured owner of a motor boat.

In Anzalone, as plaintiff points out, there were two policies involved, a recreational vehicle policy and a homeowners policy, both of which contained intrafamily exclusions somewhat similar to the one in the policy written by defendant, and the court held the exclusions, except insofar as they might apply to interspousal liability, void and contrary to public policy in both contracts.It is important, however, to examine the rationale on which the court reached its result--i.e., that the Legislature has mandated insurance coverage for injured victims of vessels, and that the Insurance Law specifically authorizes insurers only to exclude liability coverage for the spouse of an insured, without reference to...