Coverage Pointers - Volume II, No. 13

12/12/00: IN RE LEFTWICH vs. TRAVELERS INDEMNITY CO.
New York State, Appellate Division, First Department
Workers Compensation is a Set-off Under SUM
Petitioner sought to compel insurer to arbitrate his claim for supplementary underinsured motorist coverage. Court granted insurer’s motion to permanently stay the arbitration. The policy unambiguously provided that all amounts paid to him on account of a covered injury under any workers’ compensation law were an offset against the $500,000 SUM coverage under the policy. Petitioner received in excess of $1.4 million from the tortfeasors and workers compensation, therefore his SUM coverage has been fully offset.

12/11/00: SAUER v. MARKS
New York State, Appellate Division, Second Department
Serious Injury Threshold: Chiropractor’s Affidavit not based on Recent Examination Insufficient
Plaintiff alleged that she sustained a serious injury as a result of an automobile accident. Defendant moved to dismiss the complaint submitting affirmations of an orthopedist and neurologist who recently examined the plaintiff. In opposition, plaintiff submitted an affidavit of a chiropractor. The court rejected the chiropractor’s affidavit as insufficient -- his affidavit was based on findings from an examination of plaintiff done more than one year before the motion and the court found that his "projections of permanent limitations have no probative value in the absence of a recent examination."

12/11/00: SABATER-DOMINGUEZ v. GREENWALD
New York State, Appellate Division, Second Department
Serious Injury Threshold: Disc Herniation may be "Serious Injury"
Plaintiff alleged that she sustained a herniated disc as a result of an automobile accident. Defendant moved to dismiss the complaint on the ground that plaintiff did not sustain a serious injury. The Court denied the motion finding that defendant failed to meet their initial burden. As a herniated disc may constitute a serious injury, defendants had the burden to demonstrate that the herniation was not causally related to the accident. Defendants failed to meet this burden.

12/11/00: PASSARELLE v. BURGER
New York State, Appellate Division, Second Department
Serious Injury Threshold: Carpal Tunnel is not a "Serious Injury"
Plaintiff alleged that she sustained carpal tunnel as a result of an automobile accident. Defendants moved to dismiss the action based on lack of a serious injury. In support of the motion, defendant submitted affirmations of medical experts who examined the plaintiff and concluded that no objective findings supported her injury. Plaintiff’s opposition was insufficient, as she failed to submit any proof contemporaneous with the accident of any initial range of motion restrictions. In addition her doctor failed to set forth what objective tests he performed to reach his conclusions. The court also stated that even if plaintiff’s doctor’s conclusion that plaintiff had carpal tunnel were supported by objective tests, such evidence would be insufficient to satisfy the threshold criteria.

12/11/00: WEISS v. D’AURIA TRANSPORTATION
New York State, Appellate Division, Second Department
Serious Injury Threshold: Disc Bulge may be a Serious Injury
Plaintiff alleged that she sustained disc bulges as a result of an automobile accident. Defendants moved to dismiss the complaint on the ground that plaintiff did not sustain a serious injury. The Court denied the motion finding that defendants failed to meet their initial burden. The Court found that a disc bulge may constitute a serious injury. The defendants were therefore required to demonstrate that the disc bulges were not causally related to the accident, which the defendants failed to do.

12/11/00: WITTERSCHEIN v. STATE FARM INSURANCE COMPANY
New York, Appellate Division, Second Department
Plaintiff seeking SUM coverage must show Due Diligence in Giving Notice
Plaintiff made an underinsured motorist claim on his policy. His insurer moved to dismiss the complaint on the grounds that plaintiff did not give it timely notice of the claim. The Court agreed and dismissed the complaint. Plaintiff was seriously injured on November 11, 1996 while a passenger in Ramazonov’s vehicle. In March 1997 plaintiff’s counsel sent a letter to Ramazonov advising him to notify his carrier. Plaintiff’s attorney did not ascertain the limits of Ramazonov’s policy until August 1997, at which time plaintiff notified the insurer. An insured that has a potential underinsured motorist claim must put the insurer on notice "as soon as practicable" after learning of the tortfeasors policy limits. A party must also demonstrate due diligence in obtaining insurance information from the tortfeasor. In this case, the plaintiff failed to demonstrate that he exercised due diligence in attempting to ascertain the tortfeasor’s policy limits

12/11/00: MARKEVICS v. LIBERTY MUTUAL INS. CO.
New York State Supreme Court, Appellate Division, Second Department
Failure to Timely Disclaim Coverage under Business Pursuits Exclusion of Homeowners’ Policy results in Coverage for Dram Shop Claim
Plaintiff sustained personal injuries as a result of an auto accident and commenced an action against insured alleging the insured was responsible for the intoxication of the driver that caused the accident. The insured’s attorney notified his insurer of the claim and, two months later, the insurer disclaimed coverage under the "business pursuits" exclusion of its homeowners’ policy. The insurer never issued a written disclaimer to the plaintiff. In this action seeking a declaration that the insurer was obligated to defend and indemnify the insured in the underlying personal injury action, the court held that the insurer’s unexplained two-month delay in disclaiming coverage, and its failure to provide written disclaimer to the injured party, did not comply with Insurance Law §3420(d), which requires that a disclaimer be made in writing, as soon as reasonably possible, and to the insured person as well as to the injured person. The insurer was therefore estopped from disclaiming coverage based on the "business pursuits" exclusion. In a 3-2 decision, the court rejected the insurer’s argument that it had no duty to comply with Insurance Law §3420(d). "The Court of Appeals has repeatedly held that for the purpose of determining whether a liability insurance carrier has a duty to promptly disclaim in accordance with Insurance Law § 3420(d), a distinction must be made between (a) policies which contain no provisions extending coverage to the subject loss, and (b) policies which do contain provisions extending coverage to the subject loss, and which would thus cover the subject loss but for the existence, elsewhere in the policy, of an exclusionary clause. It is only in the former case that compliance with Insurance Law §3420(d) may be dispensed with." The court concluded that, were it not for the presence of an exclusion, the loss would be covered by the policy. Thus, compliance with Insurance Law §3420(d) was required.

The dissent disagreed, concluding that the homeowners' insurance policy was never written or intended to provide dram shop coverage and, as such, the policy did not extend coverage for the claims in the first instance. The dissent concluded that the policy provided coverage for a lawsuit brought against an insured for damages because of "bodily injury" caused by an "occurrence", which is defined as an "accident". The claim against O'Brien arose as a result of her alleged "non-accidental" action of serving alcohol to the driver of the car in which the plaintiff was injured. Since it did not constitute an "occurrence" within the meaning of the policy, the policy did not afford coverage. Therefore, the dissent concluded that the insurer had no obligation to timely disclaim coverage which never existed, and its failure to do so should not preclude its denial of coverage for the claim asserted against by the plaintiff.

ACROSS BORDERS

We regularly feature cases of interest from other jurisdictions. This week we offer decisions from Texas, Washington, Ohio, and West Virginia:

12/21/00: TEXAS ASSOC. OF COUNTIES COUNTY RISK MANAGEMENT POOL v. MATAGORDA COUNTY
Texas Supreme Court
An Insurer cannot get Reimbursement from Insured for Settlement Later Determined to fall Outside Scope of Coverage unless Insured Consents to Settlement or Policy Expressly Permits Right of Reimbursement
The Texas Supreme Court held that when coverage is disputed and the insurer is presented with a reasonable settlement demand within policy limits, the insurer may fund the settlement and seek reimbursement only if it obtains the insured's clear and unequivocal consent to the settlement and the insurer's right to seek reimbursement.

In this case, the Texas Association of Counties County Government Risk Management Pool (TAC) tried to obtain reimbursement from its insured, Matagorda County, for an amount that TAC paid to settle a claim that was later determined to be excluded from coverage. While TAC contended that denying a reimbursement right places insurers faced with a reasonable settlement offer within policy limits in an untenable position, the Texas Court disagreed, and ruled that insurers are required either to accept coverage or make a good-faith effort to resolve coverage through a declaratory judgment action before resolving the underlying claim.

The Court found that requiring the insurer, rather than the insured, to choose a course of action is appropriate because the insurer is in the business of analyzing and allocating risk and is in the best position to assess the viability of its coverage dispute. Absent a meeting of the mind with the insured, there is no implied consent to reimbursement and no equitable right of reimbursement.

Prepared by Daniel R. Mawhinney of the Portland, Maine law firm of Thompson & Bowie.

12/21/00: WEYERHAEUSER CO. v. COMMERCIAL UNION INS. CO.
Supreme Court of the State of Washington
Supplemental Insurance Policy does not Create Damage Aggregate Limit
Massive costs associated with hazardous waste cleanup prompt this litigation between insured Weyerhaeuser and insurer Commercial Union to allocate financial responsibility pursuant to the terms and conditions of an insurance contract. Weyerhaeuser is the party responsible for cleaning up hazardous waste at approximately 130 sites nationwide under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. sec. 9601- 9675. Weyerhaeuser claims its past and future 'worst case scenario' costs may be as high as in the hundreds of millions of dollars to clean up these sites. In 1992 Weyerhaeuser filed a declaratory judgment action against 34 insurance companies seeking a declaration of coverage with regard to property damage at 42 allegedly polluted sites in a number of states. All insurers settled except CU. At trial, Weyerhaeuser claimed coverage under a supplemental or excess policy issued by Employers' Surplus Lines Insurance Company. CU then appeared as successor to Employers'. In part, the court ruled: (1) the supplemental policy does not create a property damage aggregate limit; (2) CU is not entitled to offset settlements Weyerhaeuser received from other insurers; (3) CU is entitled to a $500,000 (primary limit) per incident setoff against the underlying policy; and (4) a material issue of fact remains as to whether the underlying insurer's policy was properly exhausted, thus triggering CU's duty to defend Weyerhaeuser…. Stay tuned.

Prepared by Daniel R. Mawhinney of the Portland, Maine law firm of Thompson & Bowie.

12/20/00: DOE v. SHAFFER
Ohio Supreme Court
Public Policy does not Preclude Insurance Coverage for Insured’s Negligence in Supervising, Retaining and Failing To Warn of Molester’s Intentional Acts
Ohio public policy does not preclude insurance coverage for the alleged negligent supervision, retention and failure to warn of a sexual molester. The Court ruled that the intentions of the molester are immaterial to determining whether the allegedly negligent party has coverage. A contrary interpretation that refuses to distinguish between the abuser’s intentional conduct and the insured’s alleged negligent supervision would impermissibly ignore the plain language of an insurance policy that excludes from coverage bodily injury that was expected or intended from the standpoint of the insured. Further, unlike in instances of sexual molestation, permitting coverage for the type of conduct alleged here does not "‘subsidiz[e] the episodes of child sexual abuse of which its victims complain, at the ultimate expense of other insureds to whom the added costs of indemnifying child molesters will be passed.’" Society does not want to encourage or indemnify the wrongful conduct of the molester, but precluding coverage for a negligent party would not further this goal. Accordingly, the Ohio Supreme Court modified Cuervo and Westfield to hold that Ohio public policy permits a party to obtain liability insurance coverage for negligence related to sexual molestation when that party has not committed the act of sexual molestation.

Prepared by Daniel R. Mawhinney of the Portland, Maine law firm of Thompson & Bowie.

12/13/00: WEST VIRGINIA FIRE & CASUALTY CO. v. MATHEWS
West Virginia Supreme Court
Where Covered Risk is only Remote Cause of Loss, First Party Policy does not Provide Coverage
Where imposter "hires" contractor to demolish insured's house (without insured’s permission) loss is excluded under "vandalism and malicious" provisions of policy. "But for" vandalism and mischief, there would be no loss. When examining whether coverage exists for a loss under a first-party insurance policy when the loss is caused by a combination of covered and specifically excluded risks, the loss is covered by the policy if the covered risk was the efficient proximate cause of the loss. No coverage exists for a loss if the covered risk was only a remote cause of the loss, or conversely, if the excluded risk was the efficient proximate cause of the loss. The efficient proximate cause is the risk that sets others in motion. It is not necessarily the last act in a chain of events, nor is it the triggering cause. The efficient proximate cause doctrine looks to the quality of the links in the chain of causation. The efficient proximate cause is the predominating cause of the loss.

Ho! Ho! Ho!

11/29/00: DAVIS v. WAL-MART STORES, INC.
Louisiana Supreme Court
Santa Claus Attacks Customer; Verdict against Wal-Mart Reinstated
A Santa Claus figurine fell from a shelf and struck a customer on the head. The trial judge set aside a verdict for the plaintiff holding that there was no proof of negligence on the part of the store. The Louisiana Supreme Court reinstated the verdict. Even though there was no proof that there was a defective reindeer in the area, the court found that the plaintiff established that there was some evidence of a defect in the shelf upon which the statue was standing. Accordingly, the burden shifted to the defendant to exculpate itself from fault, which it did not do.

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York.

Newsletter Editor
Kevin T. Merriman
[email protected]

Insurance Coverage Team
Dan D. Kohane, Team Leader
[email protected]
Sheldon Hurwitz
Carolyn M. Henry
Kevin T. Merriman

Fire, First Party & Subrogation Team

James D. Gauthier, Team Leader
[email protected]
Donna L. Burden
Andrea Schillaci
Jody E. Briandi

© COPYRIGHT 2000 Hurwitz & Fine, P.C., ALL RIGHTS RESERVED.

REPORTED DECISIONS

LEFTWICH v. THE TRAVELERS INDEMNITY CO.

Order, Supreme Court, New York County (Emily Goodman, J.), entered November 4, 1999, which denied petitioner insured’s application to compel respondent insurer to arbitrate his claim for supplementary underinsured motorist coverage ("SUM coverage"), and granted respondent’s cross motion to permanently stay arbitration, unanimously affirmed, without costs.

Arbitration was properly stayed in view of the express, unambiguous terms of petitioner’s automobile insurance policy that all amounts paid to him by persons jointly and severally liable for a covered injury, as well as amounts paid to him on account of any such injury under any workers’ compensation law, were to be offset against the $500,000 SUM coverage available to him under the policy (cf., S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853, 854-855). Since, in connection with the accident, petitioner has received in excess of $1.4 million from two tortfeasors and workers ’ compensation benefits, his SUM coverage has been fully offset. The regulations interpreting Insurance Law § 3420(f)(2) on which petitioner relies were promulgated after the effective date of his policy and the date of the accident, and therefore do not avail him (see, id., n*). We have considered petitioner’s other arguments and find them unpreserved and otherwise unavailing.

MARKEVICS v LIBERTY MUTUAL INSURANCE COMPANY

In an action for a judgment declaring, inter alia, that the defendant Liberty Mutual Insurance Company is obligated to defend and indemnify the defendant Kerry O'Brien in connection with a personal injury action entitled Markevics v O'Brien, pending in the Supreme Court, Westchester County, under Index No . 12906/96, the defendant Liberty Mutual Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered May 13, 1999, as, upon reargument, denied its motion to dismiss the complaint and granted the plaintiff's cross motion for summary judgment declaring that it is obligated to defend and indemnify the defendant Kerry O'Brien in the underlying personal injury action.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendant Liberty Mutual Insurance Company is obligated to defend and indemnify the defendant Kerry O'Brien in the underlying personal injury action.

The plaintiff, Alexandra Markevics , sustained personal injuries as the result of an automobile accident. She commenced an action against the defendant Kerry O'Brien to recover damages for her injuries, asserting that O'Brien was responsible for the intoxication of the driver of the automobile in which she was a passenger at the time of the accident. It is unclear if O'Brien actually contributed to the driver's intoxication by furnishing alcohol to him, or, if she did, whether she did so in a social or in a business capacity.

By letter dated July 23, 1997, O'Brien's attorney notified Liberty Mutual Insurance Company (hereinafter Liberty) of the Markevics claim. Liberty thereafter disclaimed coverage on the basis of the "business pursuits" exclusion contained in its "homeowners" policy. Liberty did not issue a written disclaimer to O'Brien until November 7, 1997. Liberty did not issue a written disclaimer to Markevics.

In the instant action brought by Markevics seeking a declaration that Liberty is obligated to defend and indemnify O'Brien, the Supreme Court determined that in light of Liberty's failure to comply with Insurance Law § 3420(d), it was estopped from disclaiming coverage. The Supreme Court therefore denied Liberty's motion for summary judgment, and granted the plaintiff's cross motion for summary judgment declaring that Liberty was obligated to defend and, if necessary, indemnify O'Brien in the underlying action. On appeal, Liberty argues that it had no duty to comply with Insurance Law § 3420(d). We disagree.

Liberty's "deluxe homeowners policy" covers a variety of perils. It named William and Carol O'Brien, the parents of Kerry O'Brien, as the insured homeowners, and it further defined the term "insured" so as to include "residents of [their] household who are [their] relatives ". For the purposes of liability coverage, the policy defined the term "bodily injury" so as to include "bodily harm, sickness or disease". The term "occurrence" was defined so as to include "an accident * * * which results * * * in * * * bodily injury". It unambiguously affords coverage whenever "a claim is made or a suit is brought against an insured for damages because of bodily injury * * * caused by an occurrence".

Here, there is no question that Kerry O'Brien is an insured person under this policy. It is equally beyond question that a claim was made against her for damages because of bodily injury caused by an occurrence. The foregoing provisions clearly create coverage in this case , and, were the policy otherwise silent, there would be coverage. However, the policy is not otherwise silent, but instead contains various exclusions, upon one of which, the business pursuits exclusion, Liberty relied in issuing its disclaimer. However, that disclaimer was not made in compliance with the terms of Insurance Law § 3420(d), which requires that a disclaimer be made in writing, as soon as reasonably possible, and to the insured person as well as to the injured person (see, Hartford Ins. Co. v County of Nassau, 46 NY2d 1028 [unexplained delay of two months in disclaiming unreasonable as a matter of law]; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507 [unexplained delay of 41 days in disclaiming unreasonable as a matter of law]).

Liberty's argument that compliance with Insurance Law § 3420(d) was not necessary is not well founded . The Court of Appeals has repeatedly held that for the purpose of determining whether a liability insurance carrier has a duty to promptly disclaim in accordance with Insurance Law § 3420(d), a distinction must be made between (a) policies which contain no provisions extending coverage to the subject loss, and (b) policies which do contain provisions extending coverage to the subject loss, and which would thus cover the subject loss but for the existence, elsewhere in the policy, of an exclusionary clause . It is only in the former case that compliance with Insurance Law § 3420(d) may be dispensed with (see, Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Zappone v Home Insurance Company, 55 NY2d 131).

Here, the policy provides coverage. Were it not for the presence of an exclusion, the loss would be covered. Under the test defined by the Court of Appeals in Matter of Worcester Ins. Co. v Bettenhauser (supra), there is no question that compliance with Insurance Law § 3420(d) was required. In several cases involving a disclaimer made in reliance on a business pursuits exclusion, the courts have held that compliance with Insurance Law § 3420(d) is mandatory (see, Matter of Transportation Ins. Co. v Sellitto, 267 AD2d 462; Allegany Co-op Ins. Co. v Kohorst, 254 AD2d 744; Utica Fire Ins. Co. of Oneida County v Spagnolo , 221 AD2d 921; Dryden Mut. Ins. Co. v Michaud, 115 AD2d 150).

Our colleagues in the dissent assert that the language of the insurance contract at bar does not lead to the conclusion that, absent an exclusion, it would have provided the dram shop liability coverage sought by the plaintiff. We believe that the meaning of the language quoted above is unambiguous.

What the dissent is, in fact, advocating is a return to the rule that, under some circumstances at least, a liability insurance carrier that is disclaiming on the basis of what the policy itself designates as an exclusion from coverage, rather than on the basis of the total absence of coverage, need not disclaim promptly or otherwise comply with Insurance Law § 3420(d). This is precisely the analysis which was employed by this court in Matter of Worcester Ins. Co. v Bettenhauser (260 AD2d 488, revd 95 NY2d 185) and which is no longer viable in light of the reversal of our order in that case.

For the foregoing reasons, the Supreme Court properly determined that Liberty is obligated to defend and indemnify O'Brien in connection with the Markevics action.

BRACKEN, J.P., SULLIVAN and S. MILLER, JJ., concur.

SANTUCCI, J., dissents and votes to reverse the order appealed from in the following memorandum in which THOMPSON, J., joins:

In my opinion, the homeowners' insurance policy issued by the defendant Liberty Mutual Insurance Company (hereinafter Liberty) was never written or intended to provide dram shop coverage, and thus I vote to reverse.

Pursuant to Insurance Law § 3420(d), an insurer has an obligation to "give written notice [of its disclaimer] as soon as is reasonably possible * * * to the insured and the injured person or any other claimant". However, there is no reason for an insurer to timely disclaim coverage which does not exist under the policy ab initio (see, Zappone v Home Ins. Co., 55 NY2d 131). Contrary to the opinion of our colleagues in the majority, the homeowners' policy at issue did not furnish coverage in the first instance .

As noted by the majority, Liberty's policy states that it provides coverage for a lawsuit brought against an insured for damages because of bodily injury caused by an occurrence . It defines the term "occurrence" as an "accident". In the majority's opinion, it is "beyond question that a claim was made against [O'Brien] for damages because of bodily injury caused by an occurrence" . However, while there is no doubt that the plaintiff sustained bodily injury in an automobile accident , her claim against O'Brien does not arise from that "occurrence", but instead arises as a result of Kerry O'Brien's (hereinafter O'Brien) alleged "non-accidental" action of serving alcohol to the driver of the car in which the plaintiff was injured. Such action does not constitute an occurrence within the meaning of this policy.

More importantly, the plaintiff is only able to assert a claim against O'Brien by virtue of the so-called Dram Shop statute (see, General Obligations Law § ; 11-101). Indeed, in the absence of this statute, the plaintiff would have no legally cognizable claim against O'Brien. Therefore, insofar as O'Brien is concerned, the plaintiff's claim is not based upon an occurrence under the policy, but is a purely statutory creation. However, nowhere in the policy is there language which would support the conclusion that liability coverage is provided for a claim asserted under General Obligations Law § 11-101.

In fact, it is unreasonable to find that this policy ever contemplated indemnification coverage for a risk (such as dram shop liability) which is so completely unrelated to the insurance coverage purposes of a homeowners' policy. To require coverage under the circumstances presented herein (i.e., as a result of the insurer's failure to timely disclaim) would "produce the unfair result [of] imposing on the insurer 'an added source of indemnification which had never been contracted for and for which no premium had ever been paid'" (Planet Ins. Co. v Bright Bay Classic Vehicles, 7 5 NY2d 394, 402, quoting Zappone v Home Ins. Co., supra).

Furthermore, this conclusion is not altered by the fact that the policy contains the "business pursuits" exclusion, because in the first instance, the plaintiff 's claim does not fall within the policy's coverage provisions (cf., Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185; Handelsman v Sea Ins. Co., 85 NY2d 96). I am also aware that this court has recently held that an insurer is required to timely disclaim coverage under an automobile policy's business pursuits exclusion in connection with an insured police officer 's underinsured motorist claim arising from injuries he suffered when he was struck by a vehicle while in the course of investigating another motor vehicle accident (see, Matter of Transportation Ins. Co. v Sellitto, 267 AD2d 462). However , the Sellitto case and the case at bar involve two fundamentally different types of insurance policies , automobile versus homeowners'. It is this very difference which makes the two cases easily distinguishable since it is clear that the automobile policy in Sellitto provided coverage, ab initio, for an underinsured motorist claim by the insured. Indeed, it is beyond cavil that underinsured motorist coverage is contemplated by an automobile insurance contract which contains such option. Thus, since the Sellitto policy did provide underinsured motorist coverage, except for the business pursuit exclusion, the insurer therein was obligated to timely disclaim based on the exclusion. Here, on the other hand, the homeowners' policy did not provide "dram shop" coverage in the first instance, despite the fact that the policy also contained a business pursuits exclusion.

Therefore, there was no obligation upon the part of Liberty to timely disclaim (pursuant to the business pursuits exclusion) coverage which never existed , and its failure to do so does not preclude its denial of coverage for the claim asserted against O' Brien by the plaintiff (see, Matter of Prudential Prop. & Cas. Ins. Co. v Hobson, 67 NY2d 19; Matter of Worcester Ins. Co. v Bettenhauser, supra). Accordingly, I would reverse the order of the Supreme Court insofar as appealed from and declare that Liberty is not obligated to indemnify and defend O'Brien in the underlying action.

PASSARELLE v BURGER

In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated January 31, 2000, as denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d).

ORDERED that the order is reversed insofar as appealed from, with costs, the motion is granted, and the complaint is dismissed.

The defendant met her burden on the motion by submitting affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings supported her claim (see, Grossman v Wright, 268 AD2d 79, 83-84). The plaintiff's opposition was insufficient to raise a triable issue of fact. The plaintiff failed to submit any proof contemporaneous with the accident of any initial range of motion restrictions in opposition to the motion (see, Jimenez v Kambli, 272 AD2d 581). In addition, the plaintiff's doctor failed to set forth what objective tests, if any, he performed in arriving at this conclusions concerning any alleged restrictions of motion (see, Grossman v Wright , supra, at 84).

The plaintiff's subjective complaints of headaches were insufficient to defeat the motion (see, Alvarez v Ming Chao Wong, 266 AD2d 248).

Finally, even if the conclusion of the plaintiff's doctor that the plaintiff suffered from carpal tunnel syndrome was supported by objective medical evidence, such evidence would be insufficient to satisfy the threshold criteria that the plaintiff sustained a permanent consequential limitation of a body organ or member (see, O'Reilly v Nelson, 261 AD2d 372, 373; Horan v Mirando, 221 AD2d 506).

SABATER-DOMINGUEZ v GREENWALD

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), dated November 24, 199 9, as, upon reargument, adhered to a prior order of the same court, dated August 13, 1999, granting the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the order dated August 13, 1999, is vacated, the motion is denied, and the complaint is reinstated.

The Supreme Court, upon reargument, improperly granted the defendants' motion for summary judgment dismissing the complaint. The defendants submitted a magnetic resonance imaging report of the plaintiff's cervical spine showing a herniated nucleus pulposus at the C6-C7 level, which may constitute a serious injury within the meaning of Insurance Law § 5102(d) (see, Chaplin v Taylor, 273 AD2d 188). The defendants did not demonstrate that the herniation was not causally related to the subject accident. Thus, the defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437; Flanagan v Hoeg, 212 AD2d 756). Under thesecircumstances , we need not consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see, Chaplin v Taylor, supra).

SANFILIPPO v VT INC., AS TRUSTEE OF WORLD OMNI LTD.

In an action to recover damages for personal injuries, the defendants Bonnie E. Barnett and Douglas E. Barnett appeal from so much of an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated May 17, 2000, as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

The appellants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d ). Thus, it was incumbent on the plaintiff to come forward with admissible evidence to raise an issue of fact (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The plaintiff failed to do so, and thus, the appellants were entitled to summary judgment (see, Shay v Jerkins, 263 AD2d 475).

SAUER v MARKS

In an action to recover damages for personal injuries , the plaintiff Amanda Sauer appeals from so much of an order of the Supreme Court, Nassau County (Lally , J.), entered August 26, 1999, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant met his initial burden of establishing as a matter of law that the appellant did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the affirmations of an orthopedist and neurologist who recently had examined the appellant (see, Gaddy v Eyler, 79 NY2d 955).

Although the affidavit of the appellant's chiropractor that she submitted in opposition to the defendant 's motion for summary judgment was in admissible form (see, Feinman v Mennan Oil Co., 248 AD2d 503; Collins v AA Truck Renting Corp., 209 AD2d 363; Matter of Hudson v Board of Elections of City of New York, 20 7 AD2d 508), the chiropractor referred to findings from his examination of the appellant more than one year before the motion for summary judgment, and his "projections of permanent limitations have no probative value in the absence of a recent examination" (Bidetto v Williams, AD2d ; [2d Dept., Oct. 10, 2000]; Mohamed v Dhanasar, 273 AD2d 451; Smith v Askew, 26 4 AD2d 834; Kauderer v Penta, 261 AD2d 365; Evans v Mohammad, 243 AD2d 604).

WEISS v D'AURIA TRANSPORTATION, INC.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated July 14, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Saundra Weiss did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment. A magnetic resonance imaging of the cervical spine of the injured plaintiff revealed the existence of disc bulges at C4-5, C5-6, and C6-7, and the affidavit of the plaintiffs' expert indicated that the injury was causally related to the accident. A disc bulge may constitute a serious injury within the meaning of the Insurance Law (see, Puma v Player, 233 AD2d 308). Here, the defendants failed to demonstrate that the bulges were not related to the subject accident. Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see, Chaplin v Taylor, 273 AD2d 188). Under these circumstances, it is not necessary to consider whether the plaintiffs' papers were sufficient to raise a triable issue of fact (see, Mariaca-Olmos v Mizrhy, 226 AD2d 437).

WITTERSCHEIN v STATE FARM INSURANCE COMPANY

In an action for a judgment declaring, inter alia , that the defendant is obligated to provide the plaintiff with underinsured motorist benefits, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Slobod, J.), dated February 3, 2000, which granted the plaintiff's motion for summary judgment, denied its cross motion for summary judgment dismissing the complaint, and declared, inter alia, that it is obligated to provide the plaintiff with underinsured motorist benefits.

ORDERED that the order and judgment is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and it is declared that the defendant is not obligated to provide underinsured motorist benefits to the plaintiff .

On November 11, 1996, the plaintiff was seriously injured when a vehicle driven by Ziiadine Ramazanov, in which he was a passenger, crashed into a tree. In late December 1996 the plaintiff retained counsel to represent him in connection with the accident. In March 1997, the plaintiff's attorney sent a letter to Ramazanov advising him to "turn this letter over" to his insurance company. However , the plaintiff's attorney did not ascertain the limits of Ramazanov's insurance coverage until about August 11, 1997. Shortly thereafter, the plaintiff notified his insurance company, the defendant, State Farm Insurance Company, that he was seeking underinsured motorist benefits.

On appeal, the defendant contends that the Supreme Court erred in finding that the plaintiff gave notice of his underinsured motorist claim "as soon as practicable" and in declaring that the plaintiff is entitled to underinsured motorist benefits. We agree. In interpreting the phrase "as soon as practicable" in the context of underinsured motorist coverage, the Court of Appeals has held that "the insured must give notice with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured" (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495). Here, however, the plaintiff failed to demonstrate that he exercised due diligence in attempting to ascertain Ramazanov's policy limits prior to August 1997, when Ramazanov's insurance carrier voluntarily disclosed the policy limits during the course of settlement negotiations. Thus, the plaintiff did not give the defendant notice of his underinsured motorist claim "as soon as practicable" (see, Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, supra; Matter of Nationwide Mut . Ins. Co. v Wexler, AD2d [2d Dept., Oct. 2, 2000]; Matter of Eagle Ins. Co. v Bernardine, 266 AD2d 543).