Opinion
No. 80316/2009.
2010-10-7
Ronald GRABOSKI, Petitioner v. SPECIALTY NATIONAL INSURANCE CO. and Kemper A. Kemper Company, Respondents.
Law Firm of Ameduri Galante & Friscia, for Plaintiff. Law Firm of Morgan Melhuish & Abrutyn, for Defendants.
Law Firm of Ameduri Galante & Friscia, for Plaintiff. Law Firm of Morgan Melhuish & Abrutyn, for Defendants.
JOSEPH J. MALTESE, J.
The petition to compel arbitration made by the petitioner, Ronald Graboski (Mr. Graboski) is granted. The cross motion by the respondents, Specialty National Insurance Co. (Specialty) and Kemper A. Kemper Company (Kemper) for dismissal, and the cross motion by the respondents requesting arbitration by common law are denied. The cross motions by respondents to require an independent medical examination of Mr. Graboski and compelling the production of authorizations to obtain Mr. Graboski's medical records are granted.
Facts
This is an action resulting from an accident and seeking recovery under accident insurance coverage for uninsured motorists. Ronald Graboski (Mr. Graboski), of Staten Island, N.Y. 10314, was employed as a driver for Wilners Livery Service, Inc. (Wilners). On May 27, 2003, while driving a vehicle for Wilners during the course of his employment, Mr. Graboski was involved in a two-car motor vehicle accident. The site of the accident was the intersection of Seaview Avenue and Mason Avenue in Staten Island, New York. The second vehicle was driven by Joseph Tantillo (Mr. Tantillo). The respondents declare Wilners to be a New Jersey corporation with a New Jersey mailing address. The petitioner states Wilners has a New York venue as well. Mr. Graboski suffered various injuries as a result of the accident.
The vehicle driven by Mr. Graboski was insured under a policy issued by Specialty National Insurance Company, 7501 E. McCormick Parkway, 200 North, Scottsdale, AZ 85258. The pertinent policy is stated to be on file at Kemper Insurance Companies, Long Grove, IL. The policy is numbered 3XZ17110100, and was in effect from May 31, 2002 to May 31, 2003. The policy provided for $1,000,000.00 in coverage for accidents involving uninsured and underinsured individuals and vehicles. A policy that covers against an accident with an uninsured motorist provides the insured coverage when another vehicle is not insured. Coverage for underinsured motorists adds coverage for an insured when the limit of another's insurance policy is less than the limit of the coverage of the underinsured policy. Wilners' insurance policy contained specific separate endorsements for both New Jersey and for New York. Endorsements in effect at the time of the accident included one for injuries caused by underinsured and uninsured motorists in New Jersey and another for the same purpose in New York.
Only one insured vehicle, a 2001 Cadillac limousine license number XXXXXX, vehicle identification number XXXXXXXXXXXXXXXXX, was stated to be principally garaged in Staten Island, New York. Other vehicles insured under policy number 3XZ17110100 were principally garaged in Edison, New Jersey. The primary mailing address of Wilners is in New Jersey. The insurance agent listed on the insurance policy is The Whitmore Group LTD., with an address in Garden City, New York. The underlying insurance policy has both New York and New Jersey policy endorsements. There is no written documentation of the place the insurance policy was negotiated or signed.
Mr. Tantillo's vehicle was insured to a limit of $500,000.00. Mr. Graboski recovered only $112,000.00 from Mr. Tantillo's insurance policy, because distributions to other claimants exhausted the maximum available under Mr. Tantillo's policy.
Mr. Graboski was a named family member on a policy issued by Geico General Insurance Company (Geico), One Geico Plaza, Washington, DC 20076, policy number 0788–45–41–06. The Geico insurance policy insures against underinsured motorists up to $100,000 per person. Wilners' New Jersey underinsured and uninsured motorist endorsement to the insurance policy with Specialty and Kemper has the so-called step-down provision that limits the total amount payable under the underinsured motorist or vehicle provision to the amount provided for in the applicant's personal household, family member insurance. Wilners' New York underinsured and uninsured motorist endorsement to the policy does not have this provision.
Procedural History
The date of the accident was May 27, 2003. The petitioner served Notice of the Claim upon the respondent on September 9, 2003. In a letter dated November 21, 2006, the petitioner was notified that Mr. Tantillo's insurance coverage was exhausted under Mr. Tantillo's insurance policy issued by Farm Family Insurance Company. Request for judicial intervention to compel arbitration was dated November 4, 2009.
Discussion
In accord with general principles of procedural rules, Mr. Graboski, as the petitioner, bears the burden of proof to show that arbitration should be compelled. Once that burden is met, the burden is shifted to the respondents to show by facts or law that arbitration should not be compelled. Respondents, Specialty and Kemper, bear the burdens on their cross motions, and if met, the burden shifts to the petitioner.
Edenwald Contracting Co. v. New York, 89 A.D.2d 836, 453 N.Y.S.2d 697 [1st Dept 1982]; reversed on other grounds at60 N.Y.2d 957, 958 [1983].
The uninsured motorist endorsement should be interpreted under New Jersey law.
The petitioner asserts that the policy was negotiated and contracted in New York because the insurance agency used by Wilners to obtain the policy was located in New York. The petitioner also asserts that Wilners has a New York business address, but does not specify this alleged address. Only one of the listed vehicles covered under Wilners' insurance policy was listed as being garaged in Staten Island, New York. The respondents state the policy was a New Jersey policy because Wilners was a New Jersey corporation.
When applied to contracts, the choice of law is not dictated solely by the venue in which the contract was executed. The State of New York now uses a “grouping of contacts analysis” to determine the coverage obligation of insurers in the absence of a choice of law provision in an insurance policy.
When “determining the law governing liability insurance policies covering multistate risks a court should look to the state of the insured's principal place of business, the insured's domicile, as the primary factor, and that the state of the insured's principal place of business had a greater concern with issues of policy construction and application bearing on the amount of coverage than did the states where contracting, negotiation, or payment of the premium occurred.”
Certain Underwriters at Lloyd's v. Foster Wheeler Corp., 9 N.Y.3d 928 [2007].
Here, the insured, Wilners, principal place of business and domicile is New Jersey. Although Wilners may have a subsidiary presence in New York state, the primary mailing address is within the State of New Jersey. Under New York law, a corporate domicile is the principal place of business.
Id. at 929, 844 N.Y.S.2d 773, 876 N.E.2d 500.
Certain Underwriters at Lloyd's v. Foster Wheeler Corp., 36 A.D.3d 17, 25, 822 N.Y.S.2d 30 [1st Dept 2006]; reversed on other grounds at9 N.Y.3d 928, 844 N.Y.S.2d 773, 876 N.E.2d 500.
The respondent asserts that Wilners is a New Jersey corporation, and this is not disputed by the petitioner. Neither the petitioner nor the respondent tells us in which state falls the principal weight of Wilners' business. Relying on Wilners being a New Jersey corporation, Wilners' permanent mailing address being within New Jersey, and the disclosure that almost all of Wilners' vehicles are garaged in New Jersey, the reasonable conclusion is that the domicile of Wilners is in New Jersey. Therefore, under New York law choice of law principles, the insurance contract should be evaluated under New Jersey law.
Here, New York choice of law principles leads to the application of New Jersey law, but a reciprocal evaluation of New Jersey principles of choice of law should be undertaken to confirm the applicability of New Jersey law under that state's law.
To determine choice of law problems in torts, the State of New Jersey has recently resorted to analysis based upon a “most significant relationship” test.
Certain Underwriters at Lloyd's v. Foster Wheeler Corp., 36 A.D.3d at 25, 822 N.Y.S.2d 30;reversed on other grounds at9 N.Y.3d 928, 844 N.Y.S.2d 773, 876 N.E.2d 500.
New Jersey looks to the place of an injury combined with other contacts and principles to resolve choice of law problems.
P.V. ex rel T.V. v. Camp Jaycee, 197 N.J. 132, 136 [2008].
Id. at 144–145, 962 A.2d 453;referring toRestatement [Second] of Conflict of Law §§ 6, 145 and 146.
When regarding casualty insurance, the Restatement [Second] of Conflict of Laws looks primarily to the local law of the principal location of insured risk, unless another state should have a more significant relationship.
The respondent argues “[i]ndisputedly, New Jersey is the place where the contract was negotiated and made.”
.Restatement [Second] of Conflict of Law, § 193.
Of course, this is conclusory and not evidentiary. Therefore, according to respondent, New Jersey Law should be applied to the insurance agreement. Principal location represents the state in which the subject matter of the insurance will be located during the major portion of the insurance policy.
Allstate Ins. Co. v. Stolarz, 81 N.Y.2d 219, 228 [1993].
The respondent counters that the insured is a New Jersey corporation, and that the vehicles are principally garaged in New Jersey and are registered in New Jersey. There is no information pertaining to where the insurance contracts were signed. There is no information regarding the relative usage of the covered vehicles in different states.
.Restatement [Second] of Conflict of Law § 193, Comments and Illustrations (b).
Whether evaluated by New York or New Jersey criteria, with the information available, New Jersey has the most significant relationship to the insurance contract. Therefore, New Jersey substantive law is chosen as the basis of evaluation of this contract.
The New York endorsement is Wilners' pertinent actual insurance contract.
Uninsured motorist coverage is optional in New York.
Therefore, uninsured motorist coverage is not part of any minimum insurance requirement. The petitioner states that common sense would require a New York application of the law to step down provisions. The petitioner points out that a schedule of endorsements dated May 31, 2002 includes a New York uninsured motorists endorsement. More pertinent than the schedule is the fact that the actual endorsement is found in the exhibits to the respondent's cross motion.
.New York Insurance Law (Ins) § 3420(f)(2)(A)
The New York endorsement insures for that portion of liability consequent to bodily injury, where the liability is exceeded the limits of a motorist's insurance, but remains within the limits of the New York uninsured motorist policy. The applicable New York endorsement insures the named insured, the insured's household residents and particularly the insured's spouse, and relatives of the insured or the insured's spouse. Those insured include any other person occupying a vehicle owned by a named insured and used with the permission of the named insured, so long as that person sustains bodily injury while in the vehicle operated under those conditions. Here, the petitioner occupied the vehicle because he was within it and was driving the vehicle at the time of the accident. Thus the petitioner established the requirement of a substantial nexus between the insured vehicle and the injury sustained.
Since the petitioner both occupied and used the vehicle with the permission of Wilners, who is the named insured, and since the petitioner sustained bodily injury while in that vehicle, the petitioner is covered under the New York uninsured motorist endorsement of Wilners' insurance policy. Therefore, the New York uninsured motorist endorsement is effective in coverage of this accident that occurred in New York State.
Torres v. Travelers Indemnity Co., 171 N.J. 147, 149 [2002].
New Jersey “step down” limits of uninsured motorist coverage may not be applied.
A New Jersey uninsured motorist endorsement was a part of the insurance policy held by Wilners at the time of the accident. That endorsement limited the liability of the insurance carrier. When an injured individual was a named party on another liability policy, the maximum payable to an injured person would be the limit of that other policy. This type of provision is known as a step-down provision, stepping down coverage to the limit of another policy. In 2004, the New Jersey Supreme Court specifically stated that unambiguous step-down provisions were enforceable.
Later, step-down provisions were prohibited as of September 10, 2007 under the Uninsured/Underinsured Motorist Statute Amendment.
Pinto v. N.J. Mfrs. Ins. Co., 183 N.J. 405, 407 [2004].
However, in 2008, that statutory amendment was held to apply prospectively to its passage, and retrospective prohibitive application of this amendment was specifically rejected.
Subsequent decisions have simply accepted that no retroactive prohibitive application of the amendment is permissible,
Okulsz v. Brown, 401 NJ Supr. 496, 505 [Superior Ct. of NJ, Appellate Division 2008].
or have concluded that it would be unfair to apply the statutory amendment retroactively.
See for example Selective Ways Ins. Co. v. Fuhrman, 2010 NJ Super. Unpub. LEXIS 2183, 4–5, 2010 WL 3448041 [Superior Ct. of NJ, Appellate Div.2010]; among others.
Thus, the step-down provision of New Jersey law would be applied if the New Jersey endorsement were pertinent.
DiGirolamo v. Geico Gen. Ins. Co., 2010 NJ Super. Unpub LEXIS 757, 6, 2010 WL 1330361 [Superior Ct. of NJ, Appellate Div.2010]; among others.
Here, the petitioner argues that because the New Jersey State Legislature specifically prohibited step-down provisions on the basis of public policy. The step-down provision must not be upheld in this action. This public policy argument has been previously acknowledged by the Appellate Division of the New Jersey Superior Court.
However, the retrospective application of this public policy to step-down provisions was specifically rejected by the same court.
Hand v. Philadelphia Ins. Co., 408 N.J.Super. 124, 134, 973 A.2d 973 [Superior Ct. of NJ, Appellate Div.2009].
New Jersey statutory law does not and never did require the step-down provision, but, for a time, step-down provisions were upheld by New Jersey courts when a contract specifically provided for stepped-down payments.
Id. at 134, 973 A.2d 973.
The petitioner's argument not to uphold the step-down provision of the New Jersey endorsement is rejected.
Pinto v. NJ Mfrs. Ins. Co., 183 N.J. at 407, 874 A.2d 520.
However, this policy has a specific New York endorsement for uninsured motorists. Under the New York endorsement, there was no step-down provision. The petitioner is entitled to seek recovery to the limit of the uninsured motorist policy, despite any other policy in effect in which the petitioner is named, and despite the step-down provision found in a New Jersey endorsement, but which is not a part of the New York endorsement portion of the contract. Therefore, the New York endorsement does not require a step-down provision, because a step-down provision is neither a requirement under either New Jersey or New York law.
This court is a proper venue for the current action.
“[T]he place of trial [of an action] shall be in the county in which one of the parties resided when it was commenced.”
A foreign corporation doing business in the state of New York is deemed to be a resident of the county in which is located its principal place of business in New York.
.CPLR § 503(c); and HVT, Inc. v. Safeco Ins. Co. of Am., 2010 N. Y, Slip Op 6571 *3 [2nd Dept 2010].
Here, the petitioner, Mr. Graboski, was resident in Richmond County at the time of the accident that precipitated this action. Wilners, a New Jersey corporation, is a foreign corporation, for which the principal place of business in New York is not stated. However, it is known that at least one vehicle under Wilners' insurance policy was garaged in Richmond County. Here, New York procedural rules apply.
Thus, the Supreme Court, Richmond County is a proper venue for this action.
Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48, 53 [1999].
American Arbitration Association (AAA) arbitration is required under the contract.
Under New Jersey law, a contractual agreement to arbitrate binds parties to arbitration.
The plain words of the New York uninsured motorist endorsement are that if a disagreement exists between the insurer and a claimant as to the amount of damages that are recoverable, the matter must be arbitrated upon demand by the claimant. Here, the dispute and the demand are precisely of that nature.
Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 [2006].
An insurer may not compel arbitration when the policy does not provide for it.
In another action where the writing within a policy called for arbitration, and the expiration of a statute of limitations was an issue, the Appellate Division of the New Jersey Superior Court compelled arbitration according to the provisions of the policy.
Poray v. Royal Globe Ins. Co., 90 N.J.Super. 454, 463, 217 A.2d 916 [Superior Court of New Jersey, Law Division 1966].
When an accident occurs within the state of New Jersey under certain specified conditions, arbitration may be compelled.
Zalk v. One Beacon Ins. Co., 2007 NJ Super. Unpub. LEXIS 2501, *3 and *10, 2007 WL 92570 [Superior Ct. of NJ, Appellate Div.2007].
The statutory condition compelling arbitration is mutual agreement.
Here, the accident occurred in the state of New York. This dispute takes place under conditions foreseen by the contract. Arbitration is specifically required by the New York endorsement to the contract. New Jersey law mandates that the New York endorsement requires arbitration.
.NJ Stat. § 2A:24–3; and Barcon Assoc., Inc. v. Tri–County Asphalt Corp., 86 N.J. 179, 181 [1981].
The petitioner bears the burden of persuasion when petitioning the court to compel arbitration. Here, whether to compel arbitration rests upon the provisions of the insurance contract. By terms of the New York endorsement, the contract itself unambiguously provides for arbitration if the claimant so demands. Therefore, arbitration is an insured's reasonable expectation of the insurance contract, which is enforceable under New Jersey law.
Moreover, the New York endorsement requires that arbitration must be in accordance with the rules and procedures of the AAA prescribed or approved by the Superintendent of Insurance. The New York endorsement further provides that the insurer is bound by any award made by the arbitrators. Therefore, arbitration by the AAA is required.
Pinto v. NJ Mfrs. Ins. Co., 183 N.J. at 421, 874 A.2d 520.
The respondent cross moves for common law arbitration. Common-law arbitration, plenary action by the Chancery Court, is permitted under New Jersey law.
Common-law arbitration may be applied in the absence of specific agreement to the contrary.
Policeman's Benevolent Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392 [1999].
However, common-law arbitration would apply rules and procedures of the New Jersey Court of Chancery, not those of the AAA. Furthermore, a New York court would apply New Jersey substantive law procedures to this process.
Id. at 392, 730 A.2d 320.
Only AAA arbitration will do that. The New York endorsement requires arbitration by rules and procedures of the AAA. Therefore, applying New Jersey law, the petitioner's request to compel arbitration is ordered to proceed through the AAA as is required by the New York endorsement to the insurance contract. Arbitration will not be attempted by recreating a New Jersey Court of Chancery in the New York courts, nor through the New Jersey Court of Chancery itself.
Tanges v. Heidelberg N. Am., Inc. 93 N.Y.2d at 53, 687 N.Y.S.2d 604, 710 N.E.2d 250.
New York applies procedural rules in New York courts.
If a time limit is a substantive law of another state, New York courts should apply the time limit of the other state, whereas if a time limit is a procedural rule of another state, a New York court should apply the pertinent New York procedural rule.
In the courts of the State of New York, the forum itself determines whether time limits is a substantive law or a procedural rule.
Id. at 53, 687 N.Y.S.2d 604, 710 N.E.2d 250.
As pertains to a time limitation, the distinction lies between a substantive law which is a statute of repose, and a procedural rule which is a statute of limitations. A substantive law that imposes a time limit may be termed a “statute of repose”, but a statutory time limit as a procedural rule may be termed a “statute of limitations.”
Id. at 54, 687 N.Y.S.2d 604, 710 N.E.2d 250.
A statute of repose limits the time to assert an underlying right, whereas a statute of limitations suspends an available remedy.
Id. at 56, 687 N.Y.S.2d 604, 710 N.E.2d 250;see also Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410, 416 [2010].
Generally, a time limitation inserted into the body of a statute creating a cause of action is a statute of repose.
Tanges v. Heidelberg N. Am., Inc. at 54, 687 N.Y.S.2d 604, 710 N.E.2d 250.
A statute of repose begins to run upon the accrual and occurrence of an injury.
Id. at 55, 687 N.Y.S.2d 604, 710 N.E.2d 250.
“If a statute creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause. If the cause was cognizable at common law or by other statute law, a statutory time limit is commonly takes as a statute of limitations and must be asserted by way of defense.”
Id. at 55, 687 N.Y.S.2d 604, 710 N.E.2d 250.,
A statute of repose blocks a cause of action before it may accrue, whereas a statute of limitations, which represents a procedural rule, prevents a plaintiff from delaying an action to the strategic or tactical detriment of a potential defendant.
Id. at 56, 687 N.Y.S.2d 604, 710 N.E.2d 250;quoting Romano v. Romano, 19 N.Y.2d 444, 447, 280 N.Y.S.2d 570, 227 N.E.2d 389 (1967), overruled on other grounds by Bros. v. Florence, 95 N.Y.2d 290, 301 [2000].
Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d at 55–56, 687 N.Y.S.2d 604, 710 N.E.2d 250.
The accident occurred on May 23, 2003. On November 21, 2006 the petitioner learned that another underlying insurance policy had been exhausted. The petitioner applied, in a request for judicial intervention, to compel arbitration on November 4, 2009. The respondent to the petition cross moves to apply the New Jersey statute of limitations to this action and to dismiss the action.
The New Jersey statute of limitations that the respondent wishes the court to apply is within a statute independent of a statute creating the cause of action. Even if a time limit is imposed by an independent statute, if it imposes a time limit directly related to another statute that creates an actionable right, it is possible to consider it a statute of repose and substantive law.
That is not the case here. Therefore the New Jersey time limit on actions related to contracts is a statute of limitation and not a statute of repose. As a statute of limitation, it is a procedural rule and the procedural rule of the forum court is applicable. Therefore, the procedural statute of limitation that should be applied here is the New York statute of limitations.
Id. at 56–57, 687 N.Y.S.2d 604, 710 N.E.2d 250.
The New York procedural statute of limitations has not been exceeded.
New Jersey applies a six year statute of limitations for recovery under a contract.
New York also applies a six year statute of limitations for recovery under a contract.
The difference is the time of accrual. The New York statute of limitation for seeking coverage for uninsured and underinsured motorists coverage is six years from the accrual of the action.
In New York, the accrual of the action takes place when underlying insurance liability coverage is exhausted.
Id.
Here, the time at which the underlying insurance liability was exhausted was November 21, 2006. Therefore, under New York procedural rules in a New York court, the time limit applied to this action, should be the New York forum's procedural law. The New York six years statute of limitations has not been exceeded because the date of accrual was November 21, 2006.
Continental Ins. Co. v. Richt, 253 A.D.2d 818, 819, 677 N.Y.S.2d 634 [2d Dept 1998]; quoting City of New York v. State of New York, 40 N.Y.2d 659, 668 [1976].
Therefore, the petitioner's request to compel arbitration is not time barred, and arbitration is compelled forthwith through the AAA.
The New York endorsement holds underinsured and uninsured motorists as equivalents.
The respondent requests that the court deny the petition because the petitioner “implicitly concedes” there is no “New York Supplemental Underinsured Motorists Coverage” available. The respondent distinguishes underinsured coverage from uninsured coverage. In actuality, the New York uninsured motorist endorsement includes the definition of an underinsured motor vehicle as one which has an insurance policy with bodily injury liability insurance coverage but the amount of such insurance coverage is less than the uninsured motorist limits of the uninsured motorist policy. Therefore, the New York uninsured motorist endorsement encompasses the underinsured vehicle as well as the uninsured vehicle. Consequently, the petitioner's references to uninsured and underinsured insurance coverage are misapplied because the terms are synonymous within the context of this action and the specific New York endorsement to the insurance policy.
New Jersey law has been chosen as the substantive law for this opinion. The application of New Jersey law requires that the New York endorsement, which is the pertinent portion of Wilners' insurance contract, insists upon arbitration to be held under the rules and procedures of the AAA when demanded by the claimant. Since common-law arbitration is a plenary function of chancery court, it must not be imposed here. New York procedural rules are the procedural rules of this forum, and the New Jersey and New York statutes of limitations are procedural rules. Application of the New York statute of limitations requires the accrual date to be November 21, 2006, and the time limit for the petition has not expired.
The cross motion to dismiss Kemper from the petition is not granted.
The respondent cross moves for the dismissal of Kemper from the petition. No argument is made for the removal. Kemper is noted as having the relevant insurance policy on file at its location. Kemper's name is prominently placed on the front sheet of the policy. Although respondent's motion is unopposed, all necessary parties should be joined in an action.
Therefore, Kemper will not be removed from the petition.
.NJ Stat. § 40A:11–50; andCPLR § 1001(a).
The remaining of respondent's cross motion demands are granted.
The respondent cross moves that Mr. Graboski appear for examination before trial and for independent medical examinations, and that Mr. Graboski produce authorizations for the production of medical records. The cross motions are granted.
Accordingly, it is hereby
ORDERED that the petition of Ronald Graboski is granted in that Ronald Graboski, Specialty National Insurance Company and Kemper A. Kemper Company will proceed forthwith to arbitration using the American Arbitration Association to decide the disputed payment under the insurance contract; and it is further
ORDERED that the cross motion to dismiss Kemper A. Kemper Company from the petition to compel arbitration is not granted; and it is further
ORDERED that Ronald Graboski shall undergo independent medical examination and shall produce authorizations to obtain pertinent medical records.