Matter of Vega v. Motor Veh. Acc. Indem. Corp.
(Sup. Ct., Kings Co., decided 2/1/2010)
New York Insurance Law § 5218(a) sets forth the procedure for commencing a direct action against MVAIC in hit and run cases:
Any qualified person having a cause of action for death or personal injury arising out of the ownership, maintenance or use of a motor vehicle in this state, when the identity of the motor vehicle and of the operator and owner cannot be ascertained or it is established that the motor vehicle was at the time of the accident, in the possession of a person without the owner's consent and that the identity of such person cannot be ascertained may, upon notice to the corporation, apply to a court for an order permitting an action therefor against the corporation in that court.Petitioner knew the identity of the owner and operator of the vehicles involved in the accident in which she was seriously injured, but argued that because they were uninsured, she should be permitted to bring a direct action against MVAIC.
Kings County Supreme Court Justice Francois Rivera disagreed and dismissed her petition for an order allowing her to bring a direct action against MVAIC, holding that she first must bring a direct action against the uninsured motorist(s):
Insurance Law § 5218 permits suit directly against MVAIC where a person has been injured by an automobile and cannot establish the identity of the owner and operator or the vehicle was used without the owner's consent by an unknown person (Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). MVAIC contends that petitioner did not demonstrate that she is a qualified person pursuant to Article 52 of the Insurance Law because the identity of the owner and operator of the vehicle involved in her accident is known.* * * * *Petitioner's motion papers conclusively established that the underlying incident was not a hit and run accident as defined by Insurance Law § 5218. The identity of the owner and operator is known. Accordingly, there is no basis for permitting a direct action against MVAIC (see, Rogers v. Motor Vehicle Accident Indemnification Corporation, 300 AD2d 1000 [4th Dept. 2002]; see also, Villanueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]).
Petitioner must bring a direct action against the uninsured motorist. Depending on what happens thereafter, petitioner may be able to bring MVAIC into the action. For example, Insurance Law § 5209 authorizes MVAIC to defend an action against a defaulting uninsured motorist (see Villanzueva v. Muniz, 136 AD2d 546 [2nd Dept. 1988]). MVAIC may do so on its own or pursuant to a motion to compel brought by the qualified injured plaintiff (see Naula v. Dela Puente, 48 AD3d 434 [2nd Dept. 2008] citing Viuker v. Allstate Insurance Co., 70 AD2d 295 [2nd Dept. 1979]). Or the petitioner may pursue and obtain a judgment against the uninsured motorist and seek recovery from MVAIC pursuant to Insurance Law § 5210 (see Brandon v. Motor Vehicle Accident Indemnification Corporation, 233 AD2d 604, [3rd Dept. 1996]). In either example, however, the relevant statute contemplates that the action was already commenced against the motorist. Neither Insurance Law §§ 5209 or 5210 contemplates or authorize a direct action against MVAIC.