In the Matter of Integon Ins. v. Battaglia

9 Citing cases

  1. State Farm Fire & Cas. Co. v. McLaurin

    171 A.D.3d 1191 (N.Y. App. Div. 2019)   Cited 2 times

    We reverse insofar as appealed from. "Where an automobile insurance policy expressly requires the insurer's prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract and disqualifies the insured from availing himself [or herself] of the pertinent benefits of the policy" ( Matter of State Farm Auto. Ins. Co. v. Blanco, 208 A.D.2d 933, 934, 617 N.Y.S.2d 898 ; seeMatter of Travelers Home & Mar. Ins. Co. v. Kanner, 103 A.D.3d 736, 737, 962 N.Y.S.2d 153 ; Matter of Metlife Auto & Home v. Zampino, 65 A.D.3d 1151, 1152–1153, 886 N.Y.S.2d 697 ; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, 739 N.Y.S.2d 590 ; Matter of State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390, 391, 558 N.Y.S.2d 118 ). It is undisputed that McLaurin and Corbin entered into the settlement of the Martinez action without State Farm's consent.

  2. Progressive Nw. Ins. Co. v. Valenti

    170 A.D.3d 1024 (N.Y. App. Div. 2019)   Cited 3 times

    We affirm insofar as appealed from."As a general rule, an insured who settles with a tortfeasor in violation of a policy condition requiring his or her insurer's consent to settle, thereby prejudicing the insurer's subrogation rights, is precluded from asserting a claim for SUM benefits under the policy" ( Matter of Government Empls. Ins. Co. v. Arciello, 129 A.D.3d 1083, 1084, 12 N.Y.S.3d 228 ; seeWeinberg v. Transamerica Ins. Co., 62 N.Y.2d 379, 382–384, 477 N.Y.S.2d 99, 465 N.E.2d 819 ; Matter of Travelers Home & Mar. Ins. Co. v. Kanner, 103 A.D.3d 736, 737–738, 962 N.Y.S.2d 153 ; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, 527–528, 739 N.Y.S.2d 590 ). "However, the language set forth in 11 NYCRR 60–2.3(f), which must be included in all motor vehicle liability insurance policies in which SUM coverage has been purchased, creates an exception to this rule in situations where the insured advises the insurer of an offer to settle for the full amount of the tortfeasor's policy, which obligates the insurer [to either] consent to the settlement or to advance the settlement amount to the insured and assume the prosecution of the tort action within 30 days" ( Matter of Government Empls. Ins. Co. v. Arciello, 129 A.D.3d at 1084, 12 N.Y.S.3d 228 ; seeMatter of Central Mut. Ins. Co. [Bemiss], 12 N.Y.3d 648, 659, 884 N.Y.S.2d 222, 912 N.E.2d 54 ). In the event the insurer does not timely respond in accordance with this condition, the insured may settle with the tortfeasor without the insurer's consent and without forfeiting his or her rights to SUM benefits (seeMatter of Government Empls. Ins. Co. v. Arciello, 129 A.D.3d at 1084, 12 N.Y.S.3d

  3. Gov't Emps. Ins. Co. v. Arciello

    129 A.D.3d 1083 (N.Y. App. Div. 2015)   Cited 6 times

    We reverse.As a general rule, an insured who settles with a tortfeasor in violation of a policy condition requiring his or her insurer's consent to settle, thereby prejudicing the insurer's subrogation rights, is precluded from asserting a claim for SUM benefits under the policy (see Weinberg v. Transamerica Ins. Co., 62 N.Y.2d 379, 477 N.Y.S.2d 99, 465 N.E.2d 819 ; Matter of Travelers Home & Mar. Ins. Co. v. Kanner, 103 A.D.3d 736, 962 N.Y.S.2d 153 ; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, 739 N.Y.S.2d 590 ; Friedman v. Allstate Ins. Co., 268 A.D.2d 558, 703 N.Y.S.2d 198 ). However, the language set forth in 11 NYCRR 60–2.3(f), which must be included in all motor vehicle liability insurance policies in which SUM coverage has been purchased, creates an exception to this rule in situations where the insured advises the insurer of an offer to settle for the full amount of the tortfeasor's policy, which obligates the insurer either to consent to the settlement or to advance the settlement amount to the insured and assume the prosecution of the tort action within 30 days (see Matter of Central Mut. Ins. Co. [Bemiss], 12 N.Y.3d 648, 659, 884 N.Y.S.2d 222, 912 N.E.2d 54 ; see generally Matter of Progressive Northeastern Ins. Co. v. Cipolla, 119 A.D.3d 946, 990 N.Y.S.2d 569 ; Warner v. New York Cent. Mut. Fire Ins. Co., 97 A.D.3d 1065, 949 N.Y.S.2d 276 ; Day v. One Beacon Ins., 96 A.D.3d 1678, 948 N.Y.S.2d 468 ).

  4. Metlife Auto Home v. Zampino

    65 A.D.3d 1151 (N.Y. App. Div. 2009)   Cited 12 times

    "Where an automobile insurance policy expressly requires the insurer's prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract and disqualifies the insured from availing himself of the pertinent benefits of the policy, unless the insured can demonstrate that the insurer, either by its conduct, silence, or unreasonable delay, waived the requirement of consent or acquiesced in the settlement" ( Matter of State Farm Auto. Ins., Co. v Blanco, 208 AD2d 933, 934 [citations omitted]; see Matter of Integon Ins. Co. v Battaglia, 292 AD2d 527; Matter of State Farm Auto. Ins. Co. v Blanco, 208 AD2d 933; Matter of State Farm Mut. Ins. Co. v Lopez, 163 AD2d 390; Matter of State Farm Mut. Ins. Co. v Parker, 160 AD2d 882; State Farm Mut. Auto. Ins. Co. v Taglianetti, 122 AD2d 40; cf. Matter of State Farm Mut. Auto. Ins. Co. v Lucano, 11 AD3d 548; Friedman v Allstate Ins. Co., 268 AD2d 558). It is undisputed that Zampino entered into the settlement with Jenkins and GEICO and executed a release in their favor (which Zampino did not include in the record) without MetLife's consent.

  5. In the Matter of the Phoenix Ins. v. Kantlis

    14 A.D.3d 418 (N.Y. App. Div. 2005)

    Before: Buckley, P.J., Tom, Andrias, Marlow and Ellerin, JJ. Respondent Kantlis breached a condition of the underinsured motorists endorsement to his policy by failing to obtain petitioner's consent to settlement with the insurance carrier for one of the tortfeasors in the underlying personal injury action, thus vitiating coverage and disqualifying him from receiving these benefits ( Matter of Integon Ins. Co. v. Battaglia, 292 AD2d 527; Matter of State Farm Mut. Auto. Ins. Co. v. Hardina, 225 AD2d 486). The petition could also have been granted on collateral estoppel grounds in light of Justice Edward H. Lehner's June 2001 order granting a stay of a prior demand for arbitration in this matter, which necessarily decided the issue of the breach of the consent provision.

  6. In re of State Farm Mutual Automobile Ins. Co.

    11 A.D.3d 548 (N.Y. App. Div. 2004)   Cited 8 times

    Ordered that the order is affirmed, with costs. The appellant failed to obtain the petitioner's written consent prior to settlement of the underlying negligence action and execution of a release which failed to preserve the petitioner's subrogation rights ( see Matter of Integon Ins. Co. v. Battaglia, 292 AD2d 527; Friedman v. Allstate Ins. Co., 268 AD2d 558; Weinberg v. Transamerica Ins. Co., 62 NY2d 379; cf. Matter of American Home Assur. Co. v. Williams, 282 AD2d 674). Thus, the Supreme Court correctly determined that the appellant was precluded from asserting a claim for benefits under the supplementary underinsured motorist provision of the petitioner's insurance policy.

  7. Rodriguez v. Metropolitan Property & Casualty Insurance

    7 A.D.3d 775 (N.Y. App. Div. 2004)   Cited 3 times

    An insurer's duty to pay SUM coverage begins when the insured demonstrates that the limit of his or her bodily injury coverage exceeds the same coverage in the tortfeasor's policy ( see Matter of Metropolitan Prop. Cas. Ins. Co. v. Mancuso, 93 N.Y.2d 487, 493; Allstate Ins. Co. v. DeMorato, 262 A.D.2d 557). The plaintiffs failed to provide the documentation to establish that their bodily injury coverage exceeded the policy limits available to the tortfeasor. Furthermore, the plaintiffs failed to meet several conditions precedent to payment of the SUM claim by declining to provide the documentation and undergo the medical examination demanded by the defendant ( see White v. City of New York, 81 N.Y.2d 955; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527). Therefore, the Supreme Court should have granted that branch of the defendant's motion which was, in effect, for summary judgment dismissing the complaint.

  8. Didio v. Progressive Ins. Co.

    2019 N.Y. Slip Op. 34356 (N.Y. Sup. Ct. 2019)

    It is well-settled that "where an automobile insurance policy expressly requires the insurer's prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract and disqualifies the insured from availing himself of the pertinent benefits of the policy unless the insured can demonstrate that the insurer, either by its conduct, silence, or unreasonable delay, waived the requirement of consent or acquiesced in the settlement" (MetLife Auto & Home v. Zampino, 65 A.D.3d 1151 [2d Dept. 2009], citing, Matter of State Farm Auto. Ins. Co. v. Blanco, 208 A.D.2d 933, 934 [2d Dept. 1994]; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, supra; Matter of State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390 [2d Dept. 1990]; Matter of State Farm Mut. Ins. Co. v. Parker, 160 A.D.2d 882 [2d Dept. 1990]; State Farm Mut. Auto. Ins. Co. v. Taglianetti, 122 A.D.2d 40 [2d Dept. 1986]; cf Matter of State Farm Mut. Auto. Ins. Co. v. Lucano, 11 A.D.3d 548 [2d Dept. 2004]; Friedman v. Allstate Ins. Co., 268 A.D.2d 558 [2d Dept. 2000]).

  9. Scalzo v. State Farm Ins. Co.

    2010 N.Y. Slip Op. 30109 (N.Y. Sup. Ct. 2010)

    In general, it is the law that an injured party who prejudices the subrogation rights of his own insurer by giving a release to the tortfeasor without the insurer's consent cannot make a claim for additional benefits from that insurer. See, Weinberg v Transamerica Ins. Co., 62 NY2d 379 (1984); Matter of State Farm Mut. Ins. Co. v Lucano, 11 AD3d 548 (2d Dept. 2004); Matter of Integon Ins. Co. v Battaglia, 292 AD2d 527 (2d Dept. 2002). Although the present matter arises in the context of no-fault benefits, a creature of statute, the insurer's subrogation rights with regard to payment of APIP benefits is equitable rather than statutory in nature; it is one that exists under common law, and does not even require a specific contractual provision to be enforceable.