Summary
In Granato, one Justice concurred on constraint, suggesting that the requirement for showing of fraud against the general public was no longer viable.
Summary of this case from Royal v. Chock Full O'NutsOpinion
June 25, 1979
In an action to recover compensatory and punitive damages based upon, inter alia, an alleged violation of a fiduciary obligation, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered December 5, 1977 which granted defendant Allstate Insurance Company's motion to dismiss the complaint as to it, pursuant to CPLR 3211 (subd [a], pars 5, 7). Judgment affirmed, with costs. Any damages caused by delay were on the whole preventable. Section 675 Ins. of the Insurance Law provided plaintiffs with a quick and easy method to resolve any dispute with respect to first-party benefits. The insurance company cannot be held liable for plaintiffs' failure to utilize this remedy until 10 months after their benefits had been terminated. Plaintiffs' cause of action for punitive damages is also defective. In order to prove an action for punitive damages against an insurance company, it is necessary to show that "in its dealings with the general public [the insurance company], had engaged in a fraudulent scheme evincing such 'a high degree of moral turpitude and * * * such wanton dishonesty as to imply a criminal indifference to civil obligations' (Walker v. Sheldon, 10 N.Y.2d 401, 405)." (Buttignol Constr. Co. v. Allstate Ins. Co., 22 A.D.2d 689, affd 17 N.Y.2d 476; M.S.R. Assoc. v Consolidated Mut. Ins. Co., 58 A.D.2d 858; Hubbell v. Trans World Life Ins. Co. of N.Y., 70 A.D.2d 949). Plaintiffs' cause of action does not suggest that type of scheme and is therefore insupportable. Suozzi, J.P., Gulotta, Shapiro and Cohalan, JJ., concur.
While I concur, I do so on constraint of M.S.R. Assoc. v Consolidated Mut. Ins. Co. ( 58 A.D.2d 858) and Buttignol Constr. Co. v. Allstate Ins. Co. ( 22 A.D.2d 689, affd 17 N.Y.2d 476), I do not believe that a rule precluding an action by an insured against his carrier for damages in excess of policy limits unless the carrier is indulging in fraud in its dealings with the general public has current viability.