Opinion
No. 21579–2013.
06-25-2014
Ellen A. REILLEY, Plaintiff(s), v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (Geico), Defendant(s).
Huwel & Mulhern, Garden City, Attorneys for Plaintiff. Montfort, Healy, McGuire & Salley, Garden City, Attorneys for Defendant.
Huwel & Mulhern, Garden City, Attorneys for Plaintiff.
Montfort, Healy, McGuire & Salley, Garden City, Attorneys for Defendant.
Opinion
PETER H. MAYER, J.
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the plaintiff's motion (001), which seeks an order granting summary judgment in favor of the plaintiff pursuant to CPLR 3212, is hereby denied; and it is further
ORDERED that, upon the Court's own motion and review of the record, summary judgment is hereby granted in favor of the defendant pursuant to CPLR 3212(b), and the plaintiff's complaint is dismissed; and it is further
ORDERED that counsel for the defendant shall promptly serve a copy of this Order upon counsel for the plaintiff via First Class Mail, and shall promptly thereafter file the affidavit of such service with the County Clerk.
In this action, the plaintiff's complaint seeks payment by the defendant-insurer, GEICO, of full pre-judgment and post-judgment interest on a $197,238.30 judgment in favor of the plaintiff following a June 14, 2013 jury verdict for the plaintiff in the underlying personal injury action. In that action, plaintiff had previously been awarded summary judgment as to liability on March 20, 2012. After the damages trial, on June 14, 2013, the jury awarded the plaintiff $175,000 in damages. On July 15, 2013, a Judgment in the amount of $197,238.30 was entered against GEICO's insured, including the $175,000 jury award, $20,798.30 in interest from March 20, 2012, and $1,440 for costs and disbursements.
In accordance with its insured's policy of insurance, GEICO has paid to the plaintiff a total of $101,785.21, including its full policy limit of $100,000, $1,440 in costs and disbursements, and $345.21 of post-judgment interest, calculated at an annual rate of 9% from the date of the verdict to the date of payment. Plaintiff now seeks summary judgment requiring GEICO to pay additional interest of $15,308.61, which includes pre-judgment interest from the date summary judgment was granted to plaintiff in the personal injury action, as well as post-judgment interest on the unpaid amount plaintiff is allegedly owed.
Pursuant to relevant provisions of 11 NYCRR § 60–1.1(b), an insurance carrier providing a defense for its insured is obligated to “pay all expenses incurred by the company, all costs taxed against the insured in any such suit, and all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits ...” (see 11 NYCRR § 60–1.1 [b] ) (emphasis added). In a bifurcated personal injury action, although a successful plaintiff is properly awarded prejudgment interest from the date of the decision establishing liability rather than from the date of the damages verdict, the insurer is only liable for interest on that portion of the judgment it must pay up to the policy limits, unless the contract of insurance contains a more generous provision (Dingle v. Prudential Property and Casualty Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15 [1995];Levit v. Allstate Ins. Co., 308 A.D.2d 475, 764 N.Y.S.2d 452 [2d Dept 2003] ; Home Indemnity Co. v. Reid, 216 A.D.2d 530, 628 N.Y.S.2d 779 [2d Dept 1995] ).
Insurance carriers are required to pay interest only on that portion of a judgment within the policy limit unless the policy contains specifically broader provisions (Dingle v. Prudential Property and Casualty Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15 [1995];Home Indemnity Co. v. Reid, 216 A.D.2d 530, 628 N.Y.S.2d 779 [2d Dept 1995] ). Where there is an excess judgment in a bifurcated trial the insurer's responsibility is satisfied when interest is paid on the covered amount computed from the date of damages determination to actual payment (Id. ). Where a damages verdict in excess of the policy limits is entered, the only fair conclusion is to require the insurer to pay the plaintiff for the portion of the judgment it is responsible for under the policy and to require the insured to repay the plaintiff for use of the money in excess of the policy limits (Dingle v. Prudential Property and Casualty Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15 [1995];Levit v. Allstate Ins. Co., 308 A.D.2d 475, 764 N.Y.S.2d 452 [2d Dept 2003] ).
In an action by a plaintiff to recover the amount of an unsatisfied judgment against the insurer of the defendant in the underlying personal injury action, the plaintiff is not entitled to recover accrued prejudgment interest against a defendant-insurer awarded as part of the underlying judgment where the terms of the defendant's policy are not less generous to the plaintiff than what is required pursuant to 11 NYCRR § 60–1.1(b) (see Dingle v. Prudential Prop. & Cas. Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15 [1995];Alejandro v. Liberty Mutual Ins. Co., 84 AD3d 1132, 924 N.Y.S.2d 124 [2d Dept 2011] ).
In relevant part, CPLR 3212(b) requires that a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, and failure to do so requires denial of the motion, regardless of the insufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985];Walden Woods Homeowners' Assn. v. Friedman, 36 AD3d 691, 828 N.Y.S.2d 188 [2d Dept 2007] ; Drago v. King, 283 A.D.2d 603, 725 N.Y.S.2d 859 [2d Dept 2001] ; Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132, 504 N.Y.S.2d 519 [2d Dept 1986] ). Here, it is undisputed that GEICO has paid its full policy, post-judgment interest, and applicable costs and disbursements. The plaintiff has failed to make a prima facie showing of entitlement to judgment for additional interest as a matter of law. Therefore, plaintiff's motion for summary judgment is denied.
Paragraph (b) of CPLR 3212 further provides that “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” In this regard, a court may search the record and grant summary judgment in favor of nonmoving party as to a cause of action or issue that is the subject of motions before the court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335 [1996];Matter of Joy Builders, Inc. v. Conklin, 96 AD3d 939, 946 N.Y.S.2d 497 ; Netjets, Inc. v. Signature Flight Support, Inc., 43 AD3d 1014, 842 N.Y.S.2d 492 [2d Dept 2007] ; Linkowski v. City of New York, 33 AD3d 971, 824 N.Y.S.2d 109 [2d Dept 2006] ; Federal Natl. Mtge. Assn. v. Katz, 33 AD3d 755, 822 N.Y.S.2d 759 [2d Dept 2006] ;
Murray v. Murray, 28 AD3d 624, 812 N.Y.S.2d 378 [2d Dept 2006] ; Goldstein v. County of Suffolk, 300 A.D.2d 441, 751 N.Y.S.2d 549 [2d Dept 2002] ).
In searching this record, and in considering the issue that is the subject of the plaintiff's motion, the Court finds that the defendant is entitled to summary judgment. Accordingly, summary judgment is granted in favor of the defendant and the plaintiff's complaint is dismissed.
This constitutes the Order and Judgment of the Court.