Where Owners and Operators of Vehicles Involved in Accident Are Known, No Direct Action Against MVAIC is Permitted, Even if the Vehicles are Uninsured

AUTO – "QUALIFIED PERSON" – DIRECT ACTION AGAINST MVAIC – INSURANCE LAW § 5218
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. 

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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.

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.