Opinion
No. 4161–2012.
02-06-2015
William HARRELL and George Birdwell, Plaintiffs, v. STATE FARM INSURANCE COMPANY, Defendant.
Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, NY, Attorneys for Plaintiff. Keane & Bernhaimer, PLLC, Thomas J. Keane, Esq., of Counsel, Hawthorne, NY, Attorneys for Defendant.
Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston, NY, Attorneys for Plaintiff.
Keane & Bernhaimer, PLLC, Thomas J. Keane, Esq., of Counsel, Hawthorne, NY, Attorneys for Defendant.
MICHAEL H. MELKONIAN, J.
Defendant State Farm Insurance Company ("State Farm") moves for an order pursuant to CPLR § 3212 declaring that State Farm has no obligation to defend plaintiffs George Birdwell ("Mr.Birdwell") and William Harrell ("Mr.Harrell"), in the underlying personal injury action entitled Trina Harrell, individually and as Parent and Natural Guardian of Infant, Aislyn Harrell v. Irene R. Garofalo, William S. Harrell and George R. Birdwell, currently pending in the Supreme Court, County of Ulster, under Index Number 334/2010, or to indemnify them for any judgment which may be rendered in the underlying action.
Mr. Birdwell, a defendant in the underlying personal injury action, cross-moves for an order pursuant to CPLR § 3212 declaring that State Farm has an obligation to provide coverage and a defense to him in the underlying action for the personal injury claims asserted by Trina Harrell ("Trina") and Aislyn Harrell ("Aislyn"), and to indemnify him for any judgment that may be rendered in the underlying action, and opposes State Farm's motion.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 ). An insurer has a duty to defend its insured if the allegations state a cause of action that gives rise to the reasonable possibility of recovery under the policy (Belt Painting v. TIG Ins. Co., 100 N.Y.2d 377, 383 ;
Fitzpatrick v. American Honda Motor Corp., 78 N.Y.2d 61, 65 ). Moreover, to negate coverage by virtue of an exclusion, the "heavy" burden is on the insurer (Westview Assocs. v. Guaranty Natl. Ins. Co., 95 N.Y.2d 334, 340 ; New Pines Inc. v. North River Ins. Co., 233 A.D.2d 563, 565 ) to "establish that the language is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case" (Belt Painting v. TIG Ins. Co., 100 N.Y.2d 377, 383 ; Continental Cas. Co. v. Rapid–American Corp., 80 N.Y.2d 640, 652 ). An insurer will only be relieved of its duties under the policy if it "establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45 ; Incorporated Village of Cedarhurst v. Hanover Ins. Co., 89 N.Y.2d 293, 298 ).
The relevant facts are not in dispute. Mr. Birdwell, a resident of the State of Tennessee, permitted his son, Mr. Harrell, a resident of the State of New York, to use his vehicle. On February 18, 2008, while operating Mr. Birdwell's vehicle, Mr. Harrell was in an accident with another vehicle, resulting in injuries to his wife, Trina, his unborn daughter, Aislyn, and non-party Irene Garofalo ("Ms.Garofalo"). At the time of the accident, Mr. Birdwell had a primary liability automobile policy through State Farm, providing liability coverage for himself and Mr. Harrell (as a permissive user of his motor vehicle) of $250,000 per person and $500,000 per occurrence. In addition, Mr. Birdwell had obtained and had in force an excess liability policy issued by State Farm providing umbrella coverage of $2,000,000.
It is undisputed that when the accident occurred, Mr. Harrell was living in the State of New York with Trina, who was eight months pregnant with Aislyn. Thereafter, Trina commenced the underlying personal injury action (hereinafter "the underlying personal injury action") on behalf of Aislyn and individually against Ms. Garofalo. Ms. Garofalo, in turn, impleaded Mr. Birdwell and Mr. Harrell as third-party defendants. In September, 2012, Trina and Aislyn thereafter served a supplemental summons and amended complaint adding Mr. Birdwell and Mr. Harrell as direct defendants. On December 6, 2012, Mr. Birdwell and Mr. Harrell commenced the instant declaratory judgment action against State Farm seeking a determination that State Farm is obligated to defend and indemnify them in the underlying personal injury action for the bodily injuries suffered by Trina and Aislyn. State Farm asserted in defense that due to the household exclusion in the policy, there is no coverage for Trina and Aislyn's bodily injuries.
In determining whether a particular policy exclusion applies to deny coverage, courts are instructed to "read an insurance policy in light of common speech' and the reasonable expectations of a businessperson" (Belt Painting v. TIG Ins. Co., 100 N.Y.2d 377, 383 ; Ace Wire & Cable Co. v. Aetna Cas. & Surety Co., 60 N.Y.2d 390, 398 ). Thus, "policy exclusions are given a strict and narrow construction, with any ambiguity resolved against the insurer" (Thomas J. Lipton Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356, 361 ). Interpretation of language in insurance contracts is a question of law for the Court (Chimart Assoc, v. Paul, 66 N.Y.2d 570, 572–573 ). This is because ambiguity of the policy's language does not create questions of fact to be resolved at a trial through extrinsic or parol evidence. Such ambiguities must be construed against the insurer and resolved in favor of granting coverage to an insured (United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232 ; Mazzuoccolo v. Cinelli, 245 A.D.2d 245, 247 ).
In support of the summary judgment motion, State Farm submits, inter alia, the pleadings, an affirmation of counsel, an affidavit of Jeanne W. Kelly, Claims Team Manager for State Farm, and the applicable insurance policies.
The automobile policy issued to Mr. Birdwell defines the following material terms and phrases:
Insured means:
1.You and resident relatives for:
a.The ownership, maintenance, or use of:
(1)your car ...
3.Any other person for his or her use of:
a.Your car ...
Such vehicle must be used within the scop of your consent.
Insuring Agreement:
1.We will pay:
a.damages an insured becomes legally liable to pay because of:
(1)bodily injury to others; and
(2)damage to property caused by an accident that involves a vehicle for which that injured is provided Liability Coverage by this policy [.]
Exclusions
THERE IS NO COVERAGE FOR AN INSURED: ...
2. FOR BODILY INJURY TO:
a.YOU;
b.RESIDENT RELATIVES; AND
c.ANY OTHER PERSON WHO BOTH RESIDES PRIMARILY WITH AN INSURED AND WHO:
(1)IS RELATED TO THAT INSURED BY BLOOD, MARRIAGE, OR ADOPTION [.]
The umbrella policy issued to Mr. Birdwell defines the following material terms and phrases:
COVERAGE L–PERSONAL LIABILITY
If a claim is made or suit is brought against an insured for damages because of a loss which the insured is legally liable and to which this policy applies, we will pay on behalf of the insured, the damages that exceed the retained limit. The most we will pay for such loss is the Coverage L Limit of Liability, as shown on the declarations page, regardless of the number of insureds who may be laible, claims made, or persons injured.
6. "insured" means:
a.you and your relatives whose primary residence is your household;
b.any other human being under the age of 21 whose primary residence is your household and who is in the care of a person described in 6.a;
c.any other person or organization to the extent that they are liable for the use of an automobile, recreational motor vehicle or water craft by a person included in 6.a or 6.b ...
15. "you" and "your" means the person or persons shown as "Named Insured" on the declarations page. If a named insured shown on the declarations page is a human being than you and your includes the spouse of the first person listed as a named insured if the spouse resides primarily with that names insured.
State Farm has met its initial burden (Pfoh v. Electric Ins. Co ., 14 AD3d 777 ). The text of the automobile policy unambiguously excludes coverage for any bodily injury claims asserted by members of the household of a permissive-driver insured. Mr. Harrell, as a permissive driver, is "an insured." Since Trina and Aislyn are the wife and daughter, respectively, of Mr. Harrell, coverage is excluded under the policy. The text of the umbrella policy also excludes coverage. Inasmuch as Mr. Harrell was a resident of the State of New York at the time the accident occurred, he was not a resident relative of Mr. Birdwell and therefore not an insured.
Once a moving party has made a prima facie case showing of entitlement to summary judgement, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 ).
In opposition, Mr. Birdwell has failed to raise a triable issue of fact. Contrary to Mr. Birdwell's contentions, the provisions of his automobile and umbrella policies are clear and unambiguous. The plain language of the household exclusion precludes coverage for bodily injuries suffered by members of the household of a permissive-driver insured, in this case, Trina Harrell and/or Aislyn Harrell. Likewise, the umbrella policy does not cover Mr. Harrell, who is not an insured under same.
Accordingly, it is DECLARED and ADJUDGED that State Farm is not obligated to defend and/or indemnify Mr. Birdwell or Mr. Harrell for personal injuries suffered by Trina Harrell and/or Aislyn Harrell in the person injury action commenced by Trina Harrell, Individually and on behalf of Aislyn Harrell pending in the Supreme Court, Ulster County, under Index No. 334/2010.
State Farm's motion is granted without costs and Mr. Birdwell's cross-motion is denied without costs.
This Memorandum constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorney for State Farm. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of CPLR Rule 2220 respecting filing, entry and Notice of Entry.
SO ORDERED.