Whaley v. Jamestown Mut. Ins. Co.

• Decision Date: 25 April 1967
• Citation: 53 Misc.2d 590,279 N.Y.S.2d 267
• Parties: Frederick L. WHALEY, Jr., Plaintiff, v. JAMESTOWN MUTUAL INSURANCE COMPANY, Cynthia S. Arnold, Ronald A. Madell, Charles McNally and Kenneth Elmer, General Guardian of Pennyann Elmer and Loreen Beth Elmer, as Administrator of the Goods, Chattels and Credit of Kathleen Elmer, Deceased, Defendants.
• Court: New York Supreme Court

Page 267

279 N.Y.S.2d 267

53 Misc.2d 590

Frederick L. WHALEY, Jr., Plaintiff, v. JAMESTOWN MUTUAL INSURANCE COMPANY, Cynthia S. Arnold Ronald A. Madell, Charles McNally and Kenneth Elmer, General Guardian of Pennyann Elmer and Loreen Beth Elmer, as Administrator of the Goods, Chattels and Credit of Kathleen Elmer, Deceased, Defendants.

Supreme Court, Special Term, Madison County.

April 25, 1967.

Bond, Schoeneck & King, Syracuse, for plaintiff.

Gordon H. Mahley, Syracuse, for defendant, Jamestown Mutual Ins. Co.

Michael Klysa, Cazenovia, for defendant, Cynthia S. Arnold.

DECISION

HOWARD A. ZELLER, Justice.

In this action for declaratory judgment plaintiff moves for summary judgment. Defendant Cynthia S. Arnold concurs in plaintiff's request. Plaintiff seeks, inter alia, a judgment declaring that a Jamestown Mutual Insurance Company policy of automobile liability insurance issued to Cynthia S. Arnold was in full force and effect on May 22, 1965 when an accident occurred. The only defendant opposing the motion is Jamestown Mutual Insurance Company. The material facts sworn to in the affidavits submitted in support of the motion are not denied in the opposing affidavit by a person having actual knowledge of the circumstances. The statements in the opposing affidavit concerning what 'will appear upon the trial' and regarding what is contained in writings in deponent's possession must be disregarded. An opposing affidavit must contain evidentiary facts. (Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 63, 194 N.Y.S.2d 509, 515, 163 N.E.2d 333, 337; CPLR 3212(b).)

Jamestown Mutual Insurance Company issued an automobile liability policy to Cynthia S. Arnold as the named insured for a period from August 18, 1964 to August 18, 1965 applicable to a 1964 Ford Fairlane with serial number 4K43K 197964 which was registered in her name by the New York State Department of Motor Vehicles. The policy number is 64--FA160118. The Jamestown policy contains a provision insuring against loss from liability imposed by law both 1) the named insured (Cynthia S. Arnold) and 2) any other person using the motor vehicle with the permission of the named insured.

Cynthia S. Arnold renewed the 1964 Ford registration in January 1965. Cynthia S. Arnold permitted her brother-in-law, plaintiff Frederick L. Whaley, Jr., to operate the 1964 Ford Fairlane. On or about April 16, 1965 Whaley obtained an automobile liability insurance policy for a one year period from Merchants Mutual Insurance Company naming him as the insured and listing the same 1964 Ford Fairlane as the vehicle primarily operated. Merchants notified the Department of Motor Vehicles on an FS--30 form that it had issued such policy to Whaley replacing a Jamestown policy number 64--FFA157258, in which Whaley had been the named insured. This previous insurance policy of Whaley's with Jamestown listed a 1959 Ford as the covered vehicle.

On May 22, 1965, Whaley was driving the 1964 Ford registered to Cynthia S. Arnold with her permission on Route 5 in Madison County when it collided with a motorcycle operated by defendant Mandell and owned by defendant McNally. At the time of the collision, Kathleen Elmer was a passenger on the motorcycle and sustained injuries resulting in her death. In August 1965 an action for wrongful death was commenced by the Estate of Kathleen Elmer against Mandell, McNally, Whaley and Cynthia S. Arnold. Jamestown was notified of this lawsuit. On September 1, 1965 Jamestown by a letter addressed to Whaley with a copy sent to Cynthia S. Arnold disclaimed coverage and refused to provide Whaley (and by implication Cynthia S. Arnold) with a defense on the ground that the procurement of the Merchants policy by Whaley on April 16, 1965 then automatically terminated the coverage obtained by Cynthia S. Arnold from Jamestown on the 1964 Ford registered in her name. This letter of September I was the only notice to Cynthia S. Arnold of a claimed termination of the Jamestown policy issued to her.

The position of defendant Jamestown is that under the provisions of sections 313 and 347 of the Vehicle and Traffic Law there was an automatic termination of its policy issued to Cynthia S. Arnold effective on the date Whaley took out a Merchants Mutual policy listing the same vehicle and that no notice of termination was required to be given to her.

Section 313 deals in its first sentence with notices of termination required to be given to the 'named insured' (italics supplied) by the insurer, '* * *, provided, however, if another insurance contract has been procured, such other insurance contract shall * * * terminate the insurance previously certified with respect to any motor vehicles designated in both contracts. * * *'.

Section 347 imposes on the insurance carrier the duty of filing a notice of cancellation or termination with the office of the commissioner except when a policy has been terminated by a subsequently procured policy on any motor vehicles designated in both policies.

The foregoing sections implement the clearly stated public policy '* * * that motorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted * * *.' (Vehicle & Traffic Law, § 310(2).) Section 311(3) further states that '* * * proof of ability to respond in damages for liability arising out of the ownership, maintenance or use of a motor vehicle * * * (shall be) evidenced by an owner's policy of liability insurance * * *'. Section 312(1) prohibits registration of a motor vehicle unless the applicant provides proof of financial security 'evidenced by a certificate of insurance * * *', and requires that 'The owner of such motor vehicle * * * maintain proof of financial security continuously throughout the registration period.'

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