New Jersey Resident Injured by a Commercial Vehicle in New York Found Not to be a "Qualified Person" Entitled to Hit and Run Benefits from MVAIC

AUTO – MVAIC – INSURANCE LAW § 5218 – "QUALIFIED PERSON"
Matter of Thakuri v. Motor Veh. Acc. Indem. Corp.
(Sup. Ct., New York Co., decided 11/18/2010)

Petitioner, a New Jersey resident, made a motion for an order allowing her to commence a personal injury action against the New York Motor Vehicle Accident Indemnification Corporation (MVAIC) for a broken ankle she sustained when she was struck while riding her bicycle in Manhattan by a bus that left the scene of the accident.

In spite of her motion being unopposed, New York County Supreme Court Justice Eileen Rakower DENIED petitioner's application, finding that since New Jersey no-fault law does not afford protection for injuries from being struck by commercial vehicles, petitioner did not meet the definition of a "qualified person" under New York Insurance Law § 5202(b):

Insurance Law §5202(b) states, in relevant part:

"Qualified person" means (i) a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative[.]

On her police accident report, petitioner lists her address as "518 North 5 Street Harrison NJ 07029." On her Notice of Intention to Make a Claim form, pay stub, household affidavit; and hospital records, petitioner lists her address as 17 Davis Street Harrison, NJ. The court in Simon v. Motor Vehicle Acc Indemnification Corp., 83 AD2d 803 (1st Dept. 1981) found:

The record before this Court demonstrates that claimant is not a qualified person.   The no-fault statute in the State of New York applies to commercial vehicles, while the statute in the State of New Jersey only applies to passenger cars. Coverage for injuries sustained while being struck by a commercial van are not covered under New Jersey law.(where a New Jersey resident was struck by a commercial van that left the scene of the accident.)

In the police report, the offending vehicle is described as an "unknown bus." In her MVAIC paperwork, petitioner checks the option for "A Bus or School Bus," next to "the type of vehicle" that hit her.  There is no evidence that the bus involved in the accident was not a commercial vehicle.  Here, as in Simon, petitioner has failed to show that New Jersey would afford reciprocal coverage to a New York driver and, thus, is not considered a "qualified person" for purposes of commencing a lawsuit against MVAIC.

Obtaining Written Report of Hit-and-Run Accident Not Always Required for Claim Against MVAIC

UM – HIT-AND-RUN ACCIDENT – CLAIM TO MVAIC – REPORT TO POLICE WITHIN 24 HOURS
Matter of Gurvich v. Motor Veh. Acc. Indem. Corp.
(2nd Dept., decided 10/6/2009)

One precondition to securing uninsured motorists benefits from New York's Motor Vehicle Accident Indemnification Corporation (MVAIC) for injuries sustained in a hit-and-run accident is that the claimant "[r]eport the accident to the police, justice of the peace, a judge, or the Motor Vehicle Commissioner within twenty-four (24) hours after the accident[.]"

The New York courts liberally interpret what constitutes a satisfactory "report".  In this matter, the claimant commenced this special proceeding pursuant to Insurance Law § 5218(c) for leave to commence an action against MVAIC, which opposed the petition based on its assertion that the claimant had failed to report the hit-and-run accident to the police within 24 hours.  Kings Supreme rejected MVAIC's contention and granted the petition, leading to this appeal.

In AFFIRMING the order granting claimant's petition, the Second Department, held:

The Motor Vehicle Accident Indemnification Corporation opposed the petition for leave to commence an action against it on the ground that the petitioner failed to report the subject accident to the police within 24 hours of the occurrence. However, the courts have "consistently afforded a very liberal interpretation to the notice requirement, accepting police contacts that fall far short of the operator's obtaining a written report" (Matter of Country Wide Ins. Co. [Russo], 201 AD2d 368, 370; see Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509; Matter of Dixon v Motor Veh. Acc. Indem. Corp., 56 AD2d 650). Under the circumstances of this case, sufficient notice of the accident was timely given to the police.

The decision does not reveal what the "circumstances of this case" were that the motion and appellate courts found constituted sufficient notice of the accident to the police.  However, it appears the claimant had not obtained a written accident report from the police, something the courts rules was not fatal to her MVAIC claim. 

Second Department Affirms Denial of Petition to Stay UM Arbitration -- Insurer's Late Notice & Lack of Physical Contact Grounds Rejected

UM – AUTO  – LATE NOTICE – PREJUDICE – PHYSICAL CONTACT
Matter of New York Cent. Mut. Fire Ins. Co. v. Vento
(2nd Dept., decided 6/9/2009)

The insured, Ann Vento, sought to compel arbitration of her uninsured motorists (UM) coverage claim after she allegedly was struck by an unidentified vehicle while crossing a street at a crosswalk on October 14, 2006.  New York Central Mutual (NYCM) petitioned the Supreme Court to permanently stay arbitration on the ground that the insured had failed to comply with the notice provisions of the subject insurance policy and failed to demonstrate that her injuries were caused by physical contact with the hit-and-run vehicle.

The first notice provision in the supplemental uninsured/underinsured motorist endorsement required that "the insured or someone on the insured's behalf ... shall have filed with the [insurer] a statement under oath."  The second notice provision of the SUM endorsement required both a "notice of claim" and a "proof of claim." Written notice of claim was required "[a]s soon as practicable."  However, written proof of claim was required, upon forms furnished by NYCM, "[a]s soon as practicable after [the petitioner's] written request."

Suffolk Supreme conducted a non-jury framed-issue hearing on the issue of whether the insured's claimed injuries were caused by physical contact with a hit-and-run vehicle and denied NYCM's petition for a stay of the insured's UM arbitration.  NYCM appealed.

In AFFIRMING the trial court's order, the Second Department concluded that: (1) NYCM had not demonstrated prejudice from the insured's delay in providing either notice of claim or proof of claim; and (2) the trial court's non-jury determination of physical contact was supported by the record and, as such, could not be disturbed on appeal:

The insurer's own submissions in support of its petition demonstrated that the insured provided it with notice of the accident as soon as practicable (see Matter of Firemen's Ins. Co. v Clinton, 54 AD3d 759, 759). To the extent that the insurer demonstrated a delay in receiving the "Notice of Intention to Make Claim" form after it sent a written request for proof of claim, the insurer failed to demonstrate that it was prejudiced by any such delay (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476; Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898, 901; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905, 906-907). 

Furthermore, the sworn, signed, and notarized "Notice of Intention to Make Claim" form received by the insurer satisfied the first notice provision of the subject policy which required that the insured file a "statement under oath" that indicated that the insured had a cause of action arising out of an accident against a person whose identity was unascertainable (cf. Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923, 923), and the insurer failed to demonstrate that it was prejudiced thereby (accord Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 476; Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d at 901; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d at 906-907).

With respect to the insurer's contention that the insured failed to demonstrate physical contact, we note that "[p]hysical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle" (Matter of Great N. Ins. Co. v Ballinger, 303 AD2d 503, 504; see Insurance Law § 5217; State Farm Mut. Auto. Ins. Co. v Johnson, 287 AD2d 640, 640-641; Matter of Aetna Life & Cas. v Gramazio, 242 AD2d 530, 530). When there is an issue of fact as to whether physical contact occurred, a hearing on the issue must be conducted (see State Farm Mut. Auto. Ins. Co. v Johnson, 287 AD2d at 640-641; Matter of Aetna Life & Cas. v Gramazio, 242 AD2d at 530).

Where, as here, a case is tried without a jury, this Court's power to review the evidence is as broad as that of the trial court, "taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses'" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499, quoting York Mortgage Corp. v Clotar Costr., 254 NY 128, 133-134). In this case, the Supreme Court's determination that the insured had been struck by an unidentified vehicle is supported by the record and will not be disturbed on appeal (see Matter of Halycon Ins. Co. v Fox, 44 AD3d 662). The insured's testimony, credited by the court, demonstrated that she had come into physical contact with the hit-and-run vehicle (see Matter of Nova Cas. Co. v Musco, 48 AD3d 572, 573; Matter of Allstate Ins. Co. v McMahon, 251 AD2d at 572; Matter of Aetna Life & Cas. v Gramazio, 242 AD2d at 530).

DMV Abstract Found Sufficient to Require Hearing on Liability Coverage for Offending Vehicle, Staying UM Arbitration

AUTO – UM – HIT AND RUN – STAY OF ARBITRATION
Matter of American Transit Ins. Co. v. Molina
(Sup. Ct., New York Co., decided 4/15/2009)

American Transit commenced this special proceeding to stay the UM arbitration of Molina.  In support of its petition, American Transit offered a police report listing "Vehicle 2" as a 2000 Dodge with a certain license plate that left the scene.  American Transit also offered a DMV abstract showing two matches for that vehicle, and also indicating that Country-Wide Insurance Company insured that vehicle on the accident date. 

In granting American Transit's application for a temporary stay of the claimant's UM arbitration, the court found that American Transit "ha[d] presented evidence that raises a genuine issue as to whether Vehicle 2 was insured on the date of the accident, August 2,2008."  Noting that Country-Wide presented no evidence that it did not insure Vehicle 2 on the accident date, the motion court rejected Country-Wide's objection to the petition due to its pending investigation into the alleged accident and coverage of the vehicle.

No Contact, No Coverage

UM – PHYSICAL CONTACT – HIT AND RUN
Matter of Hanover Ins. Co. v. Lewis
(1st Dept., decided 12/2/2008)

In this classically short memorandum decision, the First Department reminds:

Physical contact is a condition precedent to the arbitration of this uninsured motorist claim, and whether or not there was physical contact between the insured vehicle and an alleged "hit and run" vehicle is an issue of fact to be decided by the court (see Matter of Empire Mut. Ins. Co. [Zelin], 120 AD2d 365 [1986]; see also Lumbermens Mut. Cas. Co. v Nespolini, 281 AD2d 365 [2001]). Here, the evidence at the framed-issue hearing establishes that the court's determination that the vehicle driven by respondent did not come into contact with another vehicle at the time of the accident was supported by a fair interpretation of the evidence, and there is no basis to disturb the hearing court's credibility determinations (see e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Respondent acknowledged that he told the police officer who responded to the scene of the accident that he had only been cut off, and the police report, which was entered into evidence without objection, is consistent with respondent's testimony.

Notice the difference between UM and no-fault litigation: something entered into evidence without objection.

Second Department Holds That No-Fault But Not UM Coverage Owed For Injuries From Intentional Vehicular Assault

NO-FAULT – UM – "ACCIDENT" – INTENTIONAL CRIMINAL CONDUCT – HIT-AND-RUN INCIDENT
State Farm Mut. Auto. Ins. Co. v. Langan
(2nd Dept., decided 9/16/2008)

Would forgetting something that happened five years ago constitute a short-term or long-term memory loss?

With this split decision, the Second Department has ruled that injuries and death from an intentional vehicular assault: (1) are NOT covered under an auto policy's UM coverage; but (2) ARE covered under the same policy's no-fault coverage.

Over the course of a week in 2002, Ronald Popadich shot a woman in New Jersey, plowed his car into 19 pedestrians in Manhattan and then stole another car, returned to the city and slammed into pedestrians again two days later. One of the injured Manhattan pedestrians was Neil Conrad Spicehandler, who was taken to a local hospital for treatment of a severely broken leg and died after two surgeries at that hospital from an embolus of "unknown origin". In 2005, the Second Department reversed the Supreme Court's order and dismissed the wrongful death action brought against the hospital by the defendant in this case, John Robert Langan, as the surviving spouse of Spicehandler under a Vermont civil union. Popadich admitted that he was trying to hurt as many people as possible and eventually pleaded guilty of second degree murder in connection with the hit-and-run incident and Spicehandler's death.

Langan had also made claims for no-fault (PIP), UM and death/dismemberment/loss of sight coverages under Spicehandler's auto policy with State Farm. State Farm denied all coverages based, among other grounds, that Spicehandler's injuries and death were caused by Popadich's intentional criminal conduct and thus were not the result of an "accident" as required by the State Farm policy.

On State Farm's motion to renew its summary judgment motion following Popadich's criminal conviction, Nassau Supreme agreed with State Farm, declaring that it was not obligated to provide PIP, UM and death/dismemberment/loss of sight coverages to Spicehandler's estate based on the lack of an "accident".

On appellate Round # 2, (Round # 1 having been the Second Department's affirmance of Nassau Supreme's denial of State Farm's motion), the 3-2 majority of the Second Department upheld the denial of UM coverage:

The purpose of an uninsured motorist endorsement is to help effectuate New York's compulsory automobile liability insurance scheme "by providing coverage to insured persons who suffer automobile accident injuries at the hands of financially irresponsible motorists" (Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581, 586). To that end, the endorsement is designed to afford an injured person "the same protection as he [or she] would have had if he [or she] had been injured in an accident caused by an identifiable automobile covered by a standard automobile liability insurance policy in effect at the time of, and applicable to, the accident" (McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d 35, 38, affd 12 NY2d 922; see Matter of Nagel [Motor Veh. Acc. Indem. Corp.], 22 NY2d 165, 170 [noting that "it has been recognized that the purpose of this statute was to provide compensation through the MVAIC to the extent that claims would be recognized and claimants compensated as if the owner or driver of the vehicle causing the injury were insured"]; accord Matter of Knickerbocker Ins. Co. [Faison], 22 NY2d 554, 558, cert denied 393 US 1055). Thus, in New York, the mandatory coverage afforded under an uninsured motorist endorsement is meant to be coextensive with, and therefore no greater than, the standard coverage that would ordinarily be available to the uninsured motorist had he or she been insured (cf. McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d at 42). Plainly, no standard automobile liability policy would have provided coverage to Popadich for the injuries he intentionally inflicted on Spicehandler (see Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 928; Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629). It follows, then, that, because no coverage would have been provided under a standard automobile liability policy issued to Popadich, State Farm is not obligated to provide benefits under the uninsured motorist endorsement of its policy with Langan (see McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d at 42). Accordingly, we conclude that State Farm established its prima facie entitlement to judgment as a matter of law with respect to Langan's claim for uninsured motorist benefits by establishing that Spicehandler's injury and subsequent death were caused by Popadich's intentional criminal acts (see Zuckerman v City of New York, 49 NY2d 557, 562). In opposition, Langan failed to raise a triable issue of fact.

The majority, however, modified Nassau Supreme's order and granted PIP and death/dismemberment/loss of sight coverages, relying mostly on established New York liability coverage case law and principles:

As explained previously, for policy reasons, New York law does not extend coverage under a mandatory uninsured motorist endorsement to injuries caused intentionally by a tortfeasor. In other contexts, however, the issue whether an event may be deemed "accidental" for insurance purposes is "usually determined by looking at the casualty from the point of view of the insured to see whether or not from his [or her] point of view the event was unexpected, unusual and unforeseen'" (Nallan v Union Labor Life Ins. Co., 42 NY2d 884, 885, quoting 30 NY Jur, Insurance, § 1099, p 484 [emphasis added]; see Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145). "In the absence of an express provision in the policy to the contrary, where the insured is intentionally injured or killed by another, and the injury or death is not the result of misconduct, provocation, or assault by the insured, but is unforeseen from the insured's point of view, and occurs without his or her agency, the injury or death is an accident or accidental, or by accidental means, within the meaning of accident insurance policies, and the insurer is liable therefor" (10 Couch on Ins. § 140:41; see New York Insurance Department Regulations § 60-1.1[f] [11 NYCRR § 60-1.1(f)] [requiring every "owner's policy of liability insurance" to include "(a) provision that assault and battery shall be deemed an accident unless committed by or at the direction of the insured."]). Consequently, in contexts other than a claim made under an uninsured motorist endorsement, coverage is unaffected by whether the tortfeasor acted intentionally in causing the injury, provided only that, from the viewpoint of the insured, the event was "unexpected, unusual and unforeseen" and not brought about by the insured's own "misconduct, provocation, or assault" (Nallan v Union Labor Life Ins. Co., 42 NY2d 884).
In this case, from Spicehandler's point of view, the incident that caused his injuries and death was certainly "unexpected, unusual and unforeseen," and was not the result of any "misconduct, provocation, or assault" on his part. Consequently, the question of whether or not Popadich acted with criminal intent, although critical to the issue of coverage under the uninsured motorist endorsement, was entirely irrelevant to State Farm's obligation here to provide coverage under the subject policy's mandatory personal injury protection endorsement, and its death, dismemberment, and loss of sight provisions, neither of which contain a specific exclusion for injury or death caused by an intentional act. Viewed in this context, our observation on the prior appeal that, "if Spicehandler's injuries and death were the result of an intentional assault or an intentional homicide . . . the incident is not covered under the applicable policy" (State Farm Mut. Auto. Ins. Co. v Langan, 18 AD3d at 862), can reasonably be read as directed only at the policy's uninsured motorist endorsement. Moreover, that our holding affords different interpretations of the term "accident" within the subject policy is the inevitable consequence of the fact that current New York law makes uninsured motorist coverage in this State narrower than would be expected under general insurance principles.

With respect to PIP coverage for intentionally caused injuries, this decision seems to be at sharp odds with the Second Department's 2003 decision in Westchester Med. Ctr. a/a/o Aferdita Suljovic v. Travelers Prop. Cas. Ins. Co., 309 AD2d 927 (2nd Dept. 2003), the husband-who-tried-to-kill-his wife-by-driving-their-car-over-a-cliff case, in which the Second Department held:

However, [Travelers] correctly contends that her injuries were not caused by an accident. The assault, committed through the use of a vehicle, was an intentional act, not an accident (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751; Matter of Progressive Northwestern Ins. Co. v Van Dina, 282 AD2d 680; Allstate Ins. Co. v Bostic, 228 AD2d 628; Matter of Aetna Cas. & Sur. Co. v Perry, 220 AD2d 497, 498; McCarthy v Motor Vehicle Acc. Indem. Corp., 16 AD2d 35, affd 12 NY2d 922). Consequently, the first cause of action [seeking to recover no-fault payments for Mrs. Suljovic's hospitalization and treatment] should have been dismissed.

Oddly, the Second Department does mention this 2003 decision in its decision of last week but only in relation to the UM coverage issue and not in its discussion of the PIP coverage issue, leaving claimants and insurers to wonder whether there is any way to distinguish or explain the two seemingly irreconcilable holdings on the no-fault coverage issue. Relying on Westchester Medical Center v. Travelers, the Third Department also made the same ruling in Progressive Northern Ins. Co. v. Rafferty ("Carman's injuries were not caused by an 'accident' and, thus, he was not eligible for no-fault benefits under the policy.") Any thoughts out there?

With respect to UM coverage, the two-justice dissent reluctantly agreed that case law precedent supported State Farm's denial of such coverage but recommended an appeal to the Court of Appeals:

Given the foregoing discussion, the persuasive logic and strong public policy considerations underlying those decisions in other jurisdictions which have allowed the recovery of uninsured motorist benefits in cases such as this, and the overwhelming modern national trend favoring such recovery, I would respectfully suggest that the time may have come for a reexamination of the governing principles in this area by our state's highest court.

Interestingly, on the issue of PIP coverage, however, the dissent thought that State Farm's denial of PIP and death/dismemberment/loss of sight coverages should have been upheld, not because of the Second Department's 2003 ruling in the Westchester Medical Center v. Travelers case, but because of the court's prior ruling in this case. The dissent also disagreed with the majority's "radically different interpretations" of the phrase"caused by accident" as used in the UM and death/dismemberment/loss of sight endorsements:

That determination is inconsistent with our previous order in this very case, in which we unequivocally and unambiguously held that no coverage was available under the policy for Spicehandler's death if it resulted from intentional conduct. Significantly, our previous decision and order was not merely limited to the uninsured motorist endorsement of the policy, but was applicable to the entire policy. Accordingly, recovery under any section of the policy is precluded by the express language of our previous order, which is binding upon us and constitutes the law of the case (see generally J-Mar Serv. Ctr. v Mahoney, Connor & Hussey, 45 AD3d 809; Suffolk County Water Auth. v Schneider, Inc., 288 AD2d 297). In any event, even if we were free to disregard the clear terms of our previous order in this case, I would decline to join in the majority's construction of the policy in such a manner that the phrase "caused by an accident" would have radically different interpretations depending upon whether it appears in the uninsured motorist endorsement or in the death benefit provisions of the subject policy.

I'm going to go out on a limb and predict that the Court of Appeals will get and hear this case. Until that happens, New York UM insurers can continue to deny UM for injuries that result from intentional vehicular assaults, whereas no-fault insurers can no longer be certain based on prior precedent from the Second and Third Departments that a denial in the same situation will be sustained if challenged in litigation or arbitration.

Editor's Note (January 31, 2019) ~~ 

On March 29, 2011, in a 5-2 decision, the New York Court of Appeals MODIFIED the Second Department's order and granted UM coverage to the decedent's estate:

We hold that, consistent with the reasonable expectation of the insured under the policy and the stated purpose of the UM endorsement (to provide coverage against damage caused by uninsured motorists), the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured's point of view and Langan is entitled to benefits under the UM endorsement.

The Court of Appeals left standing the Second Department's ruling on no-fault coverage:

For many of the same reasons, Langan is entitled to coverage under the PIP endorsement and Coverage S. The average insured's understanding of the term "accident" is unlikely to vary from endorsement to endorsement within the same policy. The occurrence, from the insured's perspective, was certainly unexpected and unforeseen and should be considered an accident subject to coverage. Contrary to State Farm's argument, we perceive no danger that this result will frustrate efforts to fight fraud in the no-fault insurance system. Significantly, there is no allegation whatsoever of fraud in this case and it is patent that benefits should continue to be denied to those who intentionally cause their own injuries.

No UM Coverage for Claimant Who Already Recovered from Driver's Insurer

UM – HIT-AND-RUN – OFFSET
Matter of Government Employees Ins. Co. v. Dunbar
(1st Dept., decided 6/10/2008)

Dunbar was injured while a passenger in a motor vehicle owned and operated by Chambers, which was involved in a hit-and-run accident. Geico insured the Chambers vehicle. Dunbar received a settlement payment of $25,000 from Geico, based on the negligence liability of Chambers.

Dunbar then sought to arbitrate a UM coverage claim for that same amount, which was the UM coverage limit of Chambers policy, based on the responsibility of the unidentified hit-and-run driver. Geico commenced this special proceeding to stay that arbitration on the ground that any recovery based on UM benefits (to a limit of $25,000) was offset by the $25,000 Dunbar had already recovered for this same injury.

Bronx Supreme denied Geico's petition to stay, and the First Department REVERSED:

Respondent's demand for arbitration clearly refers to the policy issued to driver Chambers. However, the only policy included in the record, in this proceeding to stay arbitration, is a separate policy issued by petitioner to the injured respondent passenger himself, in which respondent purchased supplemental uninsured/underinsured (SUM) coverage, and the court appears to have denied the petition to stay arbitration on the ground that petitioner failed to make a sufficient showing that recovery under the Chambers policy precludes recovery under the SUM provision of the policy issued to respondent.

Since respondent received $25,000 in settlement of his claimed injuries, any potential UM claim under either the Chambers policy or a SUM claim under respondent's own policy was offset by the prior settlement payment (citation omitted]). Sufficient evidence was presented to the court to make such determination, inasmuch as there was no dispute as to the existence and terms of the Chambers policy or the amount of payment of the settlement in the underlying action.

Failure to Report Hit-and-Run Accident Within 24 Hours Precludes UM Coverage

UM – HIT-AND-RUN – 24-HOUR NOTICE TO POLICE OR DMV – CONDITION PRECEDENT TO COVERAGE
Sitbon v. Unitrin Preferred Ins. Co.
(2nd Dept., decided 6/3/2008)

Conditions precedent are ones that insureds must satisfy before the insurer owes coverage. Like paying the premium. Or giving timely notice of an accident. Or, in relation to uninsured motorists (UM) coverage claims stemming from hit-and-run accidents, reporting the accident to the police or other designated public official within 24 hours.

In this case, the insured was injured in a hit-and-run accident but did not report it to the police of Commissioner of DMV. Unitrin denied UM coverage, and the insured commenced this action. Unitrin moved unsuccessfully for summary judgment.

The Second Department REVERSED the lower court's order, finding Unitrin had made a prima facie showing of its entitlement to summary judgment by demonstrating, through the testimony of the plaintiff at an EUO documentation, that timely notice was not provided to either the police or the DMV Commissioner. In response, the plaintiff insured failed to raise a triable issue of fact as to whether he, or anyone on his behalf, provided timely notice, or any notice, of the accident as required.

The plaintiff did not oppose the motion for summary judgment with an affidavit or affirmation from the individual who prepared the original of the unsigned, partially completed, MV-104 form (Report of Motor Vehicle Accident) dated December 20, 2004, attesting to the filing of the report with the Commissioner and when it was filed. The plaintiff's sworn statements as to his knowledge of who prepared the report on his behalf are directly contradictory, with no explanation of the contradiction. Additionally, the Commissioner's form report of a motor vehicle accident specifically provides, in bold lettering, that an accident report is not considered complete and filed unless it is signed.