Weinberg v. Insurance Co. of North America

• Decision Date: 27 September 1976
• Docket Number: No. 242,242
• Citation: 388 N.Y.S.2d 69,88 Misc.2d 82
• Parties: Samuel WEINBERG, Plaintiff-Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 69

388 N.Y.S.2d 69

88 Misc.2d 82

Samuel WEINBERG, Plaintiff-Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.

No. 242.

Supreme Court, Appellate Term, First Department.

Sept. 27, 1976.

Brady, Tarpey, Downey & Hoey, P.C., New York City (John J. Palmeri, New York City, of counsel), for appellant.

Samuel Weinberg and Gerard Arthur Wisla, Brooklyn, for respondent.

Before DUDLEY, J.P., and HUGHES and TIERNEY, JJ.

PER CURIAM:

Judgment entered February 23, 1976, after non-jury trial (Okin, J.) in favor of plaintiff in the sum of $4,128.06, upon an award of $3,694.45, with interest and costs, affirmed with $25 costs.

Plaintiff, an attorney, purchased a 'Personal Catastrophe Policy' after receiving an advertising brochure from his insurance broker, published by defendant insurer. The brochure represented that the policy would provide broad, 'umbrella' coverage in areas '* * * not covered at all by your present basic policies, including: libel, slander and false arrest * * *. In these and many other areas, your Personal Catastrophe Plan Moves in as your only primary coverage * * * covers legal defense and settlement costs from the first dollar if not provided by basic insurance. Like having an attorney on retainer--free of any additional charge' (Exh. 1; emphasis in exhibit).

When plaintiff was served with a summons and complaint in a slander action, he called upon defendant to defend the lawsuit. The insurance company disclaimed on the ground that coverage was excluded under the policy.

The policy undertook to defend and indemnify the insured for amounts he '* * * shall become legally obligated to pay as damages because of personal injury or property damage.' 'Personal injury' is defined in the policy to include 'libel, slander, defamation of character or invasion of rights of privacy * * *,' However, an exclusionary clause provides that the policy shall not apply 'to any act committed by or at the direction of the insured with intent to cause personal injury or property damage'. This action, brought on the policy itself and also on the ground of misrepresentation, is to recover the amounts personally expended by plaintiff after the disclaimer in the defense and settlement of the slander suit.

The trial court held that the exclusionary clause was ambiguous, should be construed most strongly against the insurer, and, in light of the brochure, was inapplicable to plaintiff's claims under the policy.

Since the decision of the court below, the Court of Appeals, in considering a similar policy, containing an almost identical exclusion, held that that policy did not afford coverage for the insured for a slander action in which it was alleged that the claimant spoke falsely or willfully with intent to injure (Shapiro v. Glens Falls Ins. Co., 39 N.Y.2d 204, 383 N.Y.S.2d 263, 347 N.E.2d 624).

This court is constrained to follow the majority opinion in Shapiro and in the absence of the brochure, would accordingly hold that under the terms of the policy under review, defendant would not...