Opinion
Index No. 034472/2019 E
05-12-2020
BRYAN NEEDELMAN, Plaintiff, v. AMERICAN ALTERNATIVE INSURANCE CORPORATION; GLATFELTER INSURANCE GROUP and VOLUNTEER FIREMEN'S INSURANCE SERVICES, INC. a/k/a VFIS, Defendant .
Unpublished Opinion
DECISION & ORDER
ROLF M. THORSEN, JUDGE
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
Plaintiff commenced the within declaratory judgment/breach of contract action arising out of Defendant American Alternative Insurance Corporation's (hereinafter "Defendant AA Insurance" or "Defendant") denial of supplemental uninsured/underinsured motorist benefits as a result of an automobile accident that took place on October 12, 2018. It is undisputed that at the time of 'the accident, Plaintiff was operating his personal RAM pick-up truck while performing his duties as a volunteer fireman for the Stony-Point Fire District (hereinafter "Stony Point FD"). Stony Point FD is insured by Defendant AA Insurance. Defendant AA Insurance now moves summary judgment pursuant to CPLR §3212. The Court has considered the following papers on the motion:
1. Notice of Motion, Affirmation and Exhibits A through C attached thereto;
2. Plaintiff's Affirmation [in Opposition] and Exhibits A through G attached thereto and Plaintiff's Affidavit; and
3. Defendant AA Insurance's Reply Affirmation.
It is well settled that "[i]n construing policy provisions defining the scope of coverage, courts 'first look to the language of the policy.'" Matter of State Farm Mut. Auto. Ins. Co. v. Jones, 128 A.D.3d 1074, 1075 (2d Dept. 2015). Moreover, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, whereas ambiguous provisions must be resolved in favor of the insured. See, e.g.. Matter of State Farm Mut. Auto. Ins. Co. v. Jones, 128 A.D.3d at 1075-1076; Lavanant v. General Acci. Ins. Co., 79 N.Y.2d 623, 629 (1992); Matter of State Farm Mut. Auto. Ins. Co. v. O'Brien, 120 A.D.3d 1252, 1253 (2d Dept. 2014).
The relevant section of Stony Point FD's automobile insurance policy pertaining to Supplementary Uninsured/Underinsured Motorists benefits, as set forth on the Declarations page, indicates that Supplementary Uninsured/Underinsured benefits are available to "covered autos" with the numerical symbol "6." See, Defendant's Exhibit C. The description of a "covered auto" with that designation, i.e., the numerical symbol "6," is found on the Business Auto Coverage Form. See, Defendant's Exhibit C. Thus, "covered autos" designated with a "6" refers to "owned 'autos' subject to a compulsory uninsured motorists law" and is defined as "[o]nly those 'autos' you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage. This includes those 'autos' you acquire ownership of after the policy begins provided they are subject to the same state uninsured motorists requirement." See, Defendant's Exhibit C. Additional terms regarding uninsured/underinsured motorists benefits are set forth in an Endorsement. See, Defendant's Exhibit C. As is relevant here, the Endorsement states as follows:
The word "you" refers to the Stony Point FD, the insured.
We, the company, agree with you, as the named insured, in return for payment of the premium for this coverage, to provide Supplementary Uninsured/Underinsured Motorists (SUM) coverage, subject to the following terms and conditions:
INSURING AGREEMENTS
I. Definitions: For purposes of this SUM endorsement, the following terms have the following meanings.
a. Insured
The unqualified term "insured" means:
(1) you, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse;
(2) any person while acting in the scope of that person's duties for you, except with respect to the use and operation by such person of a motor vehicle not covered under this policy, where such person is:
(i) your employee and you are a
fire department;
(ii) your member and you are a fire company, as defined in General Municipal Law section 100;
(iii) your employee and you are an ambulance service, as defined in Public Health Law section 3001; or
(iv) your member and you are a voluntary ambulance service, as defined in Public Health Law section 3001....See, Defendant's Exhibit C (Emphasis added). Clearly, these provisions limit coverage to identified or defined automobiles. Such provisions are enforceable. See, Jones v. St. Paul Fire & Marine Ins. Co.. 295 A.D.2d 569, 571 (2d Dept. 2020).
Thus, under Section (1)(a)(2) of the Endorsement, any person who is acting in the scope of his/her duties for the insured (here, the Stony Point FD), will be entitled to uninsured/underinsured motorist benefits if he/she is operating a vehicle that is covered under the insured's policy. Referring back to the Business Coverage Auto Form for the definition of "covered" autos, only those autos that are owned by Stony Point FD are included. If it was intended for Plaintiff's personal automobile to be included as a covered auto for uninsured/underinsured motorist benefits on Stony Point FD's policy, then the Declarations page would have indicated that. Specifically, instead of or in addition to designating it with a "6," which covers vehicles owned by the insured, it would have also indicated that those vehicles defined with a numerical symbol "9" are covered, which are defined as "only those 'autos' you do not own, lease, hire, rent or borrow that are used in connection with your business." See, Defendant's Exhibit C. As Plaintiff was operating his own personal vehicle, i.e., the RAM truck, he is not entitled to uninsured/underinsured motorist benefits under the policy issued by Defendant. See, e.g., Jones v. St. Paul Fire & Marine Ins. Co., 295 A.D.2d 569 (2d Dept. 2020).
Based on the foregoing, it is hereby
ORDERED that Defendant AA Insurance's motion for summary judgment is granted and the Complaint is dismissed.
The foregoing constitutes the Decision and Order of this Court.