Opinion
No. 14974/13.
10-07-2014
FIDUCIARY INSURANCE COMPANY OF AMERICA, Plaintiff, v. Dok Chu YI and Jung Im Kim, Defendants.
Peter M. Khrinenko, Esq., Brand, Glick & Brand, PC, Garden City, for Plaintiff. Laurence D. Rogers, Law Office of Cupit & Rogers, LLP, Plainview, for Dok Chu Yi. Jason Ginsberg, Esq., Law Offices of Andrew Park, PC, New York, for Jung Im Kim.
Peter M. Khrinenko, Esq., Brand, Glick & Brand, PC, Garden City, for Plaintiff.
Laurence D. Rogers, Law Office of Cupit & Rogers, LLP, Plainview, for Dok Chu Yi.
Jason Ginsberg, Esq., Law Offices of Andrew Park, PC, New York, for Jung Im Kim.
Opinion
TIMOTHY J. DUFFICY, J.
The following papers numbered 1 to 15 read on this motion by plaintiff for an order granting it a default judgment against both defendants Dok Chu Yi and Jung Im Kim in this action for failure to interpose an answer to the plaintiff's summons and declaring that it has no obligation to defend or indemnify its insured Dok Chu Yi, the defendant in the underlying action, entitled Jung Im Kim v. Dok Chu Yi, under Index No 10041/13, in Supreme Court, Queens County.
| PAPERS | NUMBERED |
|---|---|
| Notice of Motion–Affirmation–Exhibits | 41277 |
| Affirmation in Opposition–Exhibits | 41765 |
| Affirmation in Opposition–Exhibits | 41860 |
| Reply Affirmation | 41955 |
| Reply Affirmation | 14–15 |
Upon the foregoing papers, it is ordered that the motion by plaintiff for an order granting it a default judgment against both defendants Dok Chu Yi and Jung Im Kim in this action for failure to interpose an answer to the plaintiff's summons and declaring that it has no obligation to defend or indemnify its insured Dok Chu Yi, the defendant in the underlying action, entitled Jung Im Kim v. Dok Chu Yi, under Index No 10041/13, in Supreme Court, Queens County, is granted in all respects.
The underlying action stems from an April 17, 2013 incident in which the insured, Yi, a livery cab driver, picked up the claimant and her friends around midnight. At some point, an altercation ensued between the parties. Later that morning, Kim and her friend had the insured arrested by the police, signing a criminal complaint against him that charged him with reckless endangerment, menacing, leaving the scene of an incident, and harassment.
On May 22, 2013, a personal injury action was commenced by the Law Offices of Andrew Park, Esq. Interestingly, the summons and complaint in that action alleges that “on April 17, 2013, the motor vehicle owned and operated by Defendant Dok Chu Yi came into contact with the motor vehicle operated by Plaintiff JUNG IM KIM at the aforementioned location.” On July 3, 2013, after receiving the summons and complaint from its insured, Yi, Fiduciary disclaimed coverage, while providing a defense, on the ground that the injury was excluded from its policy because it was “expected or intended.” A copy of the disclaimer was sent to claimant's attorney, the insured and his agent. On July 16, 2013, Kim and her attorney in the personal injury case attended an Examination Under Oath conducted by the plaintiff's investigative unit. Fiduciary then filed the instant declaratory judgment action, serving the defendants, in August, 2013, and sending a copy to Kim's attorney in the personal injury case. Since August, 2013, despite having been contacted by the plaintiff in this action (at least twice each), the defendants have not interposed an answer, and remain in default.
It is well settled that an insurance company's duty to defend is broader than its duty to indemnify. Indeed, the duty to defend is “exceedingly broad” and an insurer will be called upon to provide a defense whenever the allegations of the complaint “suggest ... a reasonable possibility of coverage” (Continental Cas. Co. v. Rapid–American Corp., 80 N.Y.2d 640, 648 [1993] ). “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” (Ruder & Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 670 [1981] ).
An insurance carrier must provide a defense to its insured “whenever the allegations in a complaint, liberally construed, suggest a reasonable possibility of coverage, or when the insurer has actual knowledge of facts establishing such a reasonable possibility” (City of New York v. Insurance Corp. of NY, 305 A.D.2d 443[2d Dept.2003] ; see Frontier Insulation Contrs. v. Merchants Mut. Ins. Co., 91 N.Y.2d 169, 175 [1997] ).
To be relieved of its duty to defend, an insurer must establish, as a matter of law, that there is “no possible factual or legal basis upon which it might eventually be obligated to indemnify its insured,” or must prove that “the allegations fall wholly within a policy exclusion” (City of New York v. Insurance Corp. of NY, supra at 444; see Frontier Insulation Contrs. v. Merchants Mut. Ins. Co., supra ). In determining whether coverage exists, the court must assume that what is alleged in the complaint actually happened (Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153 [1992] ; Altamore v. Aetna Cas. & Sur. Co., 238 A.D.2d 455, 456 [2d Dept.1997] ; Monter v. CNA Ins. Cos., 202 A.D.2d 405, 405–406 [2d Dept.1994] ).
The policy in question contains the following pertinent exclusion:
1 Expected Or Intended Injury
“Bodily injury” or “property damage” expected or intended from the standpoint of the “insured”.
This language is intended to comply with the Court of Appeals' decision, in Agoado Realty Corp. v. United Intl. Ins. Co., 95 N.Y.2d 141, 145 [2000], in which the Court held that to successfully bar coverage under an insurance policy's intentional acts exclusion, the insurer must prove that there is no possible legal or factual basis to support a finding that, from the point of view of the insured, the bodily injuries inflicted were unexpected, unintended and unforeseen. Moreover, intentional conduct will be found where the harm “was inherent in the nature and force” of the wrongful act (Pennsylvania Millers Mut. Ins. Co. v. Rigo, 256 A.D.2d 769, 771 [3d Dept.1998] ; see New York Cent. Mut. Fire Ins. Co. v. Wood, 36 AD3d 1048, 1049 [3d Dept.2007] ).
The identical policy language was analyzed by the Second Department, in Hereford Ins. Co. v. Segal, 40 AD3d 816 (2d Dept.2007). While the officer stood next to the insured's vehicle, the insured grabbed the officer's arm through the open driver's side window, accelerated the vehicle, and dragged the officer approximately 40 feet. The court held since the injuries were to be reasonably expected, the insurer was not obligated to defend or indemnify him. The Court held that the injured party's injuries were to be reasonably expected by the insured when he grabbed the victim's arm, accelerated his vehicle, and dragged him approximately 40 feet, causing his body to strike his vehicle.
In Pagano v. Allstate Ins. Co., 5 AD3d 576, 576–577 (2d Dept.2004), the Court stated:
The homeowner's and personal umbrella policies issued by the defendant to the plaintiffs excluded coverage for bodily injury “intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, an[y] insured person.” Since the acts alleged in the underlying action sounding in assault and intentional infliction of emotional distress were intentional acts, they were not covered by the policy, and the defendant was not obligated to defend or indemnify the plaintiffs (see Harmann v. Allstate Ins. Co., 260 A.D.2d 544, 545, 688 N.Y.S.2d 600 [1999] ; Altamore v. Aetna Cas. & Sur. Co., supra; Tranchina v. Government Empls. Ins. Co., 235 A.D.2d 471, 652 N.Y.S.2d 1010 [1997] ; Utica Fire Ins. Co. of Oneida County, N.Y. v. Shelton, 226 A.D.2d 705, 641 N.Y.S.2d 864 [1996] ).
Similarly, in dealing with assaultive conduct, the Court, in Allstate Ins. Co. v. Schimmel, 22 AD3d 616 (2d Dept.2005), held the injuries were to be reasonably expected, and were inherent in the conduct. Thus, the insurer was not obligated to defend or indemnify him (see also State Farm Fire & Cas. Co. v. Joseph M., 106 AD3d 806 [2d Dept.2013] ; Empire Ins. Co. v. Miguel, 114 AD3d 539, 540 [1st Dept.2014] ).
In Alarco v. New York Central Mutual Fire Insurance Co., 2008 N.Y. Misc. LEXIS 8716, 9–10 (Sup.Ct. Nassau Co.2008), the insured allegedly shot a paint ball gun at the vehicle in which claimant was a passenger, hitting and causing serious damage to his eye. The Court there stated:
It is well settled that the intentional/expected injury exclusion is “nothing more than a restatement of the requirement that the harm be the result of an accident for there to be coverage” (Jubin v. St. Paul Fire and Marine Ins. Co., 236 A.D.2d 712, 653 N.Y.S.2d 454 [3d Dept., 1997] ; O'Connell v. State Farm Fire and Cas. Co., 2005 WL 1576793 ). “In deciding whether a loss was the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen” (Allegany Co–Op Ins. Co. v. Kohorst, 254 A.D.2d 744, 678 N.Y.S.2d 424 (4th Dept., 1998)citing Miller v. Continental Ins. Co., 40 N.Y.2d 675, 677, 358 N.E.2d 258, 389 N.Y.S.2d 565 (1976) ; Agoado Realty Corp. v. United Int'l Ins. Co., 95 N.Y.2d 141, 145, 733 N.E.2d 213,711 N.Y.S.2d 141 [2000] ). The emphasis in this inquiry is not upon the intent to act, but upon the intent to cause harm. “Accidental results can flow from intentional acts. The damage in question may be unintended even though the original act or acts leading to the damage were intentional” (Salimbene v. Merchants Mut. Ins. Co., 217 A.D.2d 991, 994, 629 N.Y.S.2d 913 (4th Dept., 1995) ; Allegany Co–Op Ins. Co. v. Kohorst, supra at 744; Continental Cas. Co. v. Rapid–American Corp., 80 N.Y.2d 640, 649, 609 N.E.2d 506, 593 N.Y.S.2d 966 [1993] ). Thus the “critical question is whether the harm that resulted ... could have been other than harm ‘intentionally caused’ within the meaning of the policy exclusion” (Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 159, 589 N.E.2d 365, 581 N.Y.S.2d 142 [1992] ).
In Alarco, the Court found that the injury was inherent in the activity and to be expected, so much so, that it was disingenuous for the insured to deny that he intended the consequences of his actions. Compare this to Massa v. Nationwide Mut. Fire Ins. Co., 74 AD3d 1661, 1662–1663 (3d Dept.2010), in which the insured tossed a drum out a window without knowing anyone was beneath it; thus, from the insured's point of view, it was the fact that the drum would strike someone was unexpected, unintended, and unforeseen.
In opposition to the plaintiff's motion, Yi submitted an affidavit with his account of the interaction between himself and Ms. Kim. Notably, he avers that:
11. I entered my vehicle with JUNG IM KIM still lying on the hood of my vehicle. JUNG IM KIM's friend also entered the vehicle from the driver's side and continued to attack me. Being an experienced livery cab driver, I did not let their actions affect my driving. I proceed to operate the vehicle in a manner that would prevent JUNG IM KIM from coming to any harm. I put my vehicle in reverse and proceed to move backwards at a very slow speed of about one to two (1–2) miles per hour. In response to my moving the vehicle in reverse, JUNG IM KIM slid off the hood and sat on the ground. After JUNG IM KIM was free from the vehicle, I accelerated in reverse at a faster speed to get a safe-enough distance away from her. She did not chase after my car once I started moving it in reverse.
12. I stopped the car, removed the friend from the vehicle and locked the door.
13.... I am unaware of my vehicle having ever made contact with her body when I pulled it in reverse as I attempted to get her off the hood ...
(see affidavit of Dok Chu Yi, page 4, paragraphs 11–13) [Emphasis added. ]
Is it to be expected by an insured, who moves a car in reverse in order to get the claimant off the hood, that the claimant will become injured? In this Court's view, the answer is “yes”.
This Court finds that Yi's carefully crafted statement that he did not intend to cause any harm to Jung Im Kim to be unreasonable and meritless. The fact that she fell from the hood of his vehicle was an intended result of Yi's admittedly driving in reverse with her on the hood in order to “get her off the hood”. The injuries sustained by Kim were the expected and inevitable consequence of his driving his vehicle in reverse while she was lying on the hood to throw her off the hood, so he could then leave the scene. Notably, he claims that, after Kim “slid off,” he stopped the vehicle in order to remove her friend from the car. But in Kim's case, he drove the vehicle backwards while she clung to the hood to “get her off the hood.” He did not stop the vehicle and remove Kim.The self-serving statements of Ms. Kim, guided by her counsel in the underlying personal injury matter, do not alter the above result. They contradict her statements to police and the District Attorney's office (including the supporting affidavit of the information against Mr. Yi in Queens Criminal Court), and were feigned in order to provide insurance coverage for this occurrence. Her sworn testimony that she does not believe that she signed the supporting affidavit in the criminal court matter is incredible.
Thus, the plaintiff has established a meritorious cause of action. The Court finds good cause for the plaintiff's delay in moving for a default given the numerous efforts to encourage the defendants to voluntarily answer without being defaulted.
Neither defendant has asserted a reasonable excuse for their failure to respond to the plaintiff's complaint. As to Ms. Kim, the vague and unsupported claim of law office failure is incredible and insufficient. The plaintiff served a courtesy copy of the complaint upon her counsel, Law Offices of Andrew Park, P.C. Her counsel filed a summons and complaint, in the underlying personal injury action on her behalf, on or about May 22, 2013, and represented her at an Examination Under Oath, on July 16, 2013, in which the plaintiff in this action was the respondent. The same counsel has had no difficulty interposing opposition to the instant motion. Yet, her counsel failed to interpose an answer in this action, and she is still in default. Ms. Kim and Mr. Yi were each contacted by plaintiff's counsel, through a letter, advising both of them that they were in default and warning them that a default judgment would be filed. Yi telephoned plaintiff's counsel in this action, was advised that he needed to appear, and indicated no interest in doing so. This fact is uncontroverted by his opposition papers. These are intentional defaults, which cannot be excused (see Dimopoulos v. Caposella, 118 AD3d 739, 741 [2d Dept.2014] ; Vardaros v. Zapas, 105 AD3d 1037, 1038 [2d Dept.2013] ).
Accordingly, it is hereby
ORDERED, ADJUDGED and DECLARED, that a default judgment is entered as against the defendants in this action, Dok Chu Yi and Jung Im Kim, and plaintiff Fiduciary Insurance Company of America has no duty to provide coverage, either a defense or indemnity, on behalf of defendant Dok Chu Yi, the defendant in the underlying action, entitled Jung Im Kim v. Dok Chu Yi, under Index No 10041/13, in Supreme Court, Queens County; and it is further,
ORDERED, ADJUDGED, and DECLARED, that the accident of April 13, 2013, caused “expected or intended injury ... from the standpoint of the insured;” and it is further,
ORDERED, ADJUDGED and DECLARED, that the accident of April 13, 2013, is subject to an exclusion in the policy of Dok Chu Yi, and is therefore an uncovered event; and it is further,
ORDERED, ADJUDGED and DECLARED, that any applications for relief which have not been specifically addressed herein are denied.
This constitutes the decision, order, judgment and declaration of the Court.