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Coverage Pointers - Volume IV, No. 2

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07/25/02:            AMERICAN TRANSIT INS. CO. v. WILFRED

New York State Supreme Court, Appellate Division, First Department

“Midnight” Deemed Ambiguous

This declaratory judgment action arose out of motor vehicle accident that occurred on February 28, 1998 and 9:50 pm when a taxi owned by McMaroro Transit, Inc. and operated by Wilfred, rear-ended a second vehicle. The driver and passenger in the second vehicle commenced a personal injury action against McMaroro Transit and Wilfred, and the passengers in the taxi commenced a second personal injury action against the same defendants.  Empire Mutual had issued an auto insurance policy to McMaroro “EFFECTIVE FROM MIDNIGHT: 02/28/97 TO MIDNIGHT: 02/28/98.”  American Transit Insurance Co. had issued a policy to McMaroro that was effective “FROM 02/28/1998 MIDNIGHT-02/28/1999 MIDNIGHT.” American Transit and Empire both claimed in this action that their policies were not in effect at the time of the accidents.  The court held that use of the term “midnight” by both insurers was ambiguous and, as such, that the policies overlap and that both must defend and indemnify McMaroro and Wilfred.  In reaching this conclusion, the court observed that General Construction Law § 19 defines a calendar day as “the time from midnight to midnight,” and that a number of courts, as well as other sources, have noted that the definition of a day is commonly considered to be the 24-hour period running from midnight to midnight.  Furthermore, in Mumuni v Eagle Insurance Company (247 AD2d 315, lv dismissed in part, denied in part 92 NY2d 940), the court held that the term “midnight” was ambiguous, that the ambiguity should be construed against the insurance company, and that a policy effective “from 12/31/88 midnight to 12/31/89 midnight” covered the insured from 12:01 A.M. on December 31, 1988, when the insured’s prior policy lapsed.  Finally, the court held that American Transit was obligated to defend and indemnify McMaroro and Wilfred in any event because it represented the insureds in the two underlying personal injury actions for more than two years before disclaiming coverage.

 

07/25/02:            CLAVERACK COOP. INS. CO. v. NIELSEN

New York State Supreme Court, Appellate Division, Third Department

Party Resisting Disclosure of Reports Filed by Defendant With Own Liability Carrier Must Provide More Than Conclusory Affidavits as to Nature of Reports

Defendant claimed that reports it filed with his own liability insurance carrier were immune from disclosure as material prepared in contemplation of litigation unless it could be shown that the reports served a mixed purpose and result at least in part from the internal operations of the defendant's business.  The court held that this was essentially correct, but that defendant overlooked the fact that the burden is on the party resisting disclosure to show that the materials sought were prepared solely for litigation, and this burden could not be satisfied with wholly conclusory allegations. Defendant asserted that he satisfied this burden by presenting his own affidavit, and that of his insurance company’s claims representative, indicating that defendant does not make accident reports as a usual and customary part of his business, but only to satisfy contractual obligations under his insurance policies. Defendant further stated that his liability carrier has at all times handled this third-party claims in anticipation of litigation, and that all of its investigations, including damage estimates, were done in anticipation of litigation. Although individuals with firsthand knowledge provided the statements, the affidavits were deemed wholly conclusory.  The court held that “statements . . . given to a liability insurer’s claims department as part of an internal investigation or for internal business purposes, as well as for defense purposes . . . are not immune from discovery as material prepared solely in anticipation of litigation”. To satisfy his burden, it was incumbent on defendant to set forth the particulars concerning the demanded reports, including the number and the types of reports prepared, the authors, recipients and dates on which they were prepared and the impetus for their preparation.

 

07/15/02:            BETTA v. GEICO GENERAL INS. CO.

New York State Supreme Court, Appellate Division, Second Department

Bad Faith Claims Against Insurer Dismissed

Court held that plaintiff's allegations of “insurance bad faith” based on defendant’s alleged failure to adequately investigate his claim, and the defendant’s alleged “intentional and malicious” delay of payment of his claim, failed to state a cause of action. The plaintiff's claim “amounts to nothing more than a claim based on the alleged breach of the implied covenant of good faith and fair dealing, and the use of familiar tort language in the pleading does not change the cause of action to a tort claim in the absence of an underlying tort duty sufficient to support a claim for punitive damages”. A similar a cause of action charging “violation of insurance law” was essentially the same claim and was also dismissed. The court also dismissed claims for unfair claim settlement practices, concluding there is no private cause of action for such claims. Finally, the court dismissed plaintiff’s cause of action to recover damages for the infliction of pain and suffering on the public.  The court held that “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty.”

 

07/15/02:         MATTER OF AMERICAN MANUFACTURERS MUT. INS. CO. v. MORGAN

New York State Supreme Court, Appellate Division, Second Department

SUM (Underinsured) Endorsement’s Expanded Definition of Uninsured Motor Vehicle Includes Vehicle Whose Carrier is Insolvent

Court held that, under SUM endorsement’s expanded definition of uninsured motor vehicle, one whose insurer becomes insolvent is considered uninsured, even though that very same motorist would not be considered uninsured for purposes of the compulsory uninsured motorist provisions of Insurance Law § 3420(f)(1). As such, the court concluded it was not inconsistent with, nor contrary to, the holding in State-Wide Ins. Co. v Curry to include within the sweep of SUM coverage the uninsured motorist claim asserted in this case.

 

ACROSS BORDERS

 

Visit the HOT CASES section of the Federation of Defense and Corporate Counsel website for cases covering a broad range of legal issues from other jurisdictions:  www.thefederation.org.

 

07/29/02:            AMERICAN FAMILY MUT. INS. CO. v. HADLEY

Nebraska Supreme Court

No Coverage Under Homeowners Policy for Child Abuse Because of Criminal Act Exclusion

The language of the homeowner’s policy did not make a distinction between criminal acts requiring a specific intent and those which do not; it simply stated that coverage is excluded for harm arising out of “[v]iolation of any criminal law for which any insured is convicted . . . .” Affording this language its plain and ordinary meaning, it applies to any criminal conviction, whether or not the underlying offense includes an element of intent to cause injury. Other courts have reached the same conclusion with respect to similar policy language

 

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REPORTED DECISIONS

 

CLAVERACK COOPERATIVE INS. CO. v. NIELSEN

 
Mercure, J.P.

 

Appeal from an order of the Supreme Court (Cannizzaro, J.), entered November 13, 2001 in Columbia County, which granted plaintiff's motion to compel discovery. Plaintiff paid its insured, M.A.H. LLC, for a fire loss to its real property and, claiming that defendant negligently caused the fire, brought this action to recover the amount paid. Following
joinder of issue, plaintiff served a discovery demand [*2]seeking, as relevant to this appeal, "all written reports concerning the incident which is the subject of this litigation made in the usual course of business by any person or entity" (paragraph 4), "[a]ll accident or incident reports" (paragraph 7) and "[a]ll real estate or personal property evaluations made with respect to property referred to in the complaint" (paragraph 8). Defendant took no action on the demands for a period of over six months and ultimately issued a response refusing to permit discovery of the demanded material upon the ground that it constitutes material prepared for litigation. Plaintiff thereafter moved to compel discovery. Supreme Court granted the motion, and defendant appeals. We affirm.

 

In essence, defendant's claim is that reports filed by a defendant with his or her own liability insurance carrier are immune from disclosure as material prepared in contemplation of litigation unless it can be shown that the reports served a mixed purpose and result at least in part from the internal operations of the defendant's business (see, CPLR 3101 [d] [2]; [g]; Recant v Harwood, 222 AD2d 372). That claim is essentially
correct, but defendant's analysis tends to overlook the fact that the burden is on the party resisting disclosure to show that the materials sought were prepared solely for litigation (see, Martino v Kalbacher, 225 AD2d 862, 863) and this burden cannot be satisfied with wholly conclusory allegations (see, id., at 863; James v Metro N. Commuter R.R., 166 AD2d 266, 268; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402, 403).

 

In this case, defendant asserts that he satisfied his burden by presenting his own affidavit and that of his insurance company's claims representative indicating that defendant does not make accident reports as a usual and customary part of his business, but only to satisfy contractual obligations under his insurance policies. Defendant further avers that his liability carrier has at all times handled this third-party claim in anticipation of litigation and that all of its investigations, including damage estimates, were done in anticipation of litigation. Although provided by individuals with firsthand knowledge (compare, Martino v
Kalbacher, supra, at 863), the assertions set forth in those affidavits are nonetheless wholly conclusory. Notably, self-serving statements that the party seeking to avoid disclosure is not in the business of filing insurance reports and that all reports prepared were inanticipation of litigation are insufficient to establish that the material qualifies for the privilege of CPLR 3101 (d) (2) (see, James v Metro N. Commuter R.R., supra, at 268; Chakmakjian v
NYRAC Inc., 154 AD2d 644, 645). Furthermore, "statements * * * given to a liability insurer's claims department as part of an internal investigation or for internal business purposes, as well as for defense purposes * * * are not immune from discovery as
material prepared solely in anticipation of litigation" (Agovino v Taco Bell 5083, 225 AD2d 569, 571; see, McKie v Taylor, 146 AD2d 921). In order to satisfy his burden, it was incumbent on defendant to set forth the particulars concerning the demanded reports, including the number and the types of reports prepared, the authors, recipients and dates on which they were prepared and the impetus for their preparation (see, Chakmakjian v
NYRAC Inc., supra, at 645; Crazytown Furniture v Brooklyn Union Gas Co., supra, at 403). This he did not do. Under the circumstances, we perceive no clear abuse of Supreme Court's broad discretionary power in controlling discovery and disclosure (see,
Getman v Petro, 266 AD2d 688, 690).

 

Peters, Carpinello, Mugglin and Lahtinen, JJ., concur.

 

ORDERED that the order is affirmed, with costs.

BETTAN v. GEICO GENERAL INS. CO.

 

In an action, inter alia, to recover damages for breach of an insurance policy, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Queens County (Lisa, J.), dated May 21, 2001, which, inter alia, denied that branch of his motion which was to strike the answer for failure to comply with discovery demands, granted those branches of the defendant's cross motion which were (a) pursuant to CPLR 3211(a)(7) to dismiss the second through seventh causes of action, and (b) for a protective order vacating his notice for discovery and inspection, and his interrogatories, and denied his separate motion for class action certification.

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

Accepting the allegations of the complaint as true and giving the plaintiff the benefit of every favorable inference, as we must on a motion pursuant to CPLR 3211(a) (see Leon v Martinez, 84 NY2d 83, 87-88), we agree with the Supreme Court that causes of action two through seven in the complaint failed to state a cause of action.

The second cause of action, alleging unjust enrichment, is duplicative of the first cause of action, alleging breach of contract, because both causes of action seek damages for events arising from the same subject matter that is governed by an enforceable contract. As such, the cause of action to recover for unjust enrichment should be dismissed (see Walter H. Poppe Gen. Contr. v Town of Ramapo, 280 AD2d 667, 668; see generally Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388). To the extent that the plaintiff's third cause of action alleges "insurance bad faith" based upon the defendant's alleged failure to adequately investigate his claim, and in the defendant's alleged "intentional and malicious" delay of payment of his claim, he failed to state a cause of action. The plaintiff's claim "amounts to nothing more than a claim based on the alleged breach of the implied covenant of good faith and fair dealing, and the use of familiar tort language in the pleading does not change the cause of action to a tort claim in the absence of an underlying tort duty sufficient to support a claim for punitive damages" (New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320; see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 615). Similarly, the fourth cause of action, charging "a violation of insurance law" is essentially the same claim. Further, there is currently no private cause of action for unfair claim settlement practices, which is what the plaintiff seeks to assert in this cause of action (see Insurance Law § 2601; Rocanova v Equitable Life Assur. Socy. of U.S., supra at 614).

The plaintiff also failed to state a cause of action in his request for a declaration that the defendant is a "bad faith insurer." This cause of action does not allege what rights or legal relationship between the parties need clarification. Therefore, a declaratory judgment is inappropriate (see CPLR 3001; cf. Klostermann v Cuomo, 61 NY2d 525, 538). The plaintiff's sixth cause of action is to recover damages for the infliction of pain and suffering on the public. The Supreme Court properly dismissed this cause of action because "absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty" (Wehringer v Standard Security Life Ins. Co. of N.Y., 57 NY2d 757). The Supreme Court also properly dismissed the seventh cause of action seeking an accounting. The equitable relief of an accounting is not available since no fiduciary relationship existed between the parties (see Weisman v Awnair Corp. of America, 3 NY2d 444, 450; Berke v Hamby, 279 AD2d 491, 492).

The Supreme Court properly found that the plaintiff failed to meet his "burden of establishing * * * that the prerequisites" under CPLR 901 for the maintenance of a class action were met (Canavan v Chase Manhattan Bank, 234 AD2d 493; 494; see CPLR 902; see also Chimenti v American Express Co., 97 AD2d 351, 352).

The Supreme Court properly vacated the plaintiff's discovery notice, as most of the demands contained therein were palpably improper, in that they either sought irrelevant information, were vague, or were of an overbroad and burdensome nature (see Gonzalez v International Bus. Machs. Corp., 236 AD2d 363; Holness v Chrysler Corp., 220 AD2d 721, 722; see also Aeron Aviation Corp. v Chemco Intl Leasing, 117 AD2d 573, 574). The Supreme Court also properly vacated the plaintiff's interrogatories, as most of the interrogatories were palpably improper (see Curran v Upjohn Co., 122 AD2d 929, 930). Under these circumstances, the Supreme Court properly refused to strike the answer as a sanction for the defendant's failure to respond to the discovery notice or the interrogatories (see Faith v Boston Old Colony Ins. Co., 76 AD2d 900).

The plaintiff's remaining contentions are without merit.

 

SMITH, J.P., O'BRIEN, McGINITY and CRANE, JJ., concur.

AMERICAN MANUFACTURERS MUT. INS. CO. v. MORGAN

 

In a proceeding, inter alia, pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered December 14, 2001, as, upon renewal, denied the petition and dismissed the proceeding.

 

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

 

The respondent Karen Morgan allegedly was injured in a motor vehicle accident on May 12, 2000, in Nassau County. At the time of the accident, Morgan's motor vehicle was insured by the petitioner, American Manufacturers Mutual Insurance Company (hereinafter American Manufacturers). Morgan had also purchased Supplementary Uninsured/Underinsured Motorists coverage (hereinafter SUM). The offending vehicle was insured at the time of the accident by American Agents Insurance Company (hereinafter American Agents). On February 5, 2001, American Agents was placed in liquidation. On May 25, 2001, Morgan filed a demand for SUM arbitration, claiming that the offending vehicle was uninsured.

 

American Manufacturers filed a petition, inter alia, to permanently stay arbitration under its SUM coverage on the ground that American Agents was a domestic insurer required to pay into the Public Motor Vehicle Liability Security Fund (hereinafter the Security Fund) pursuant to Insurance Law § 7604. American Manufacturers argued that since Morgan could seek compensation from the Security Fund, the offending vehicle was not uninsured, and Morgan's resort to the SUM arbitration clause of her insurance policy was precluded. Morgan countered that the applicable SUM endorsement to her policy contained the same definition of uninsured motor vehicle as Regulation 35-D (11 NYCRR 60-2.3), i.e., where the insurer "is or becomes insolvent." Thus, Morgan argued that, whether by dint of Regulation or American Manufacturers' own contractual agreement, the offending vehicle fell squarely within the definition of an "uninsured motor vehicle" and the petition to stay uninsured motorist arbitration should be denied. The Supreme Court denied the petition and we affirm, but for different reasons than those stated by the Supreme Court. The Supreme Court's holding, based in part on the "clear and unambiguous language" definition of an uninsured motor vehicle as contained in Morgan's SUM endorsement, though correct, too narrowly determines the issue presented.

 

The sole controversy presented in the action at bar concerns the definition of "uninsured motor vehicle" as used in Regulation 35-D (11 NYCRR 60-2.3), entitled "Requirements for SUM endorsements."

 

Regulation 35-D was promulgated by the Superintendent of Insurance, effective as of October 1, 1993, under the authority of Insurance Law §§ 201, 301, and 3420(f)(1) and (2) (see 11 NYCRR [*3]60-2.0 et seq.; NY Reg, June 30, 1993, at 16-17). The regulation defines an uninsured motor vehicle, insofar as is relevant here, as "a motor vehicle * * * for which * * * (3) there is a bodily injury liability insurance coverage or bond application * * * at the time of the accident, but * * * (iii) the insurer writing such insurance coverage or bond * * * is or becomes insolvent" (11 NYCRR 60-2.3[c][3][iii]).

 

Contrary to the arguments of American Manufacturers, the determination in this proceeding is not governed by the Court of Appeals' holding in State-Wide Ins. Co. v Curry (43 NY2d 298), a case decided prior to the enactment of Regulation 35-D. There, the Court held that the subsequent insolvency of a domestic insurer of an offending vehicle does not render that vehicle uninsured within the meaning of the New York Automobile Accident Indemnification Endorsement, the compulsory uninsured motorist endorsement (see State-Wide Ins. Co. v Curry, supra at 301-304). The basis for the holding is what distinguishes it from the proceeding at bar: (1) the offending vehicle did not fall within the definition of an uninsured motor vehicle as defined in the compulsory uninsured motorist scheme, that is, "where the insurer disclaims liability or denies coverage" (see Insurance Law former § 167(2-a) [now § 3420(f)(1)]), and (2) Insurance Law former §§ 333 and 334 (now § 7601 et seq.), established the Motor Vehicle Liability Security Fund to provide protection for accident victims where the liability insurer is insolvent (see State-Wide Ins. Co. v Curry, supra at 301-303). Since an offending vehicle whose insurer becomes insolvent could not be classified as uninsured under the definition set forth in the relevant statute, and the injured motorist could look for compensation to the security fund, the protection afforded by the compulsory uninsured motorist scheme was held to be inapplicable (id. at 301-304). The Court's holding in Curry was expressly limited to the insolvency of domestic insurers since nondomestic insurers do not contribute to the Motor Vehicle Liability Security Fund (id. at 302-303).

 

The Supreme Court, Nassau County, applied the holding of Curry to the only reported post-Regulation 35-D case, Matter of Government Empls. Ins. Co. v Silber (178 Misc 2d 451), which is factually identical to the proceeding at bar. The error in the holding in Matter of Government Empls. Ins. Co. v Silber (supra), is that it interpreted Regulation 35-D, and, in particular, the definition of an "uninsured motor vehicle," so that it was consistent with the Court of Appeals' interpretation of an uninsured motor vehicle as set forth in the compulsory uninsured motorist scheme.

 

Regulation 35-D is intentionally broader than the compulsory uninsured motorist statute and its very purpose is to provide those who exercise the option to purchase this additional insurance with broader coverage. In response to public comment to Regulation 35-D regarding any conflict with the holding in State-Wide Ins. Co. v Curry (supra), the Superintendent of Insurance responded, in pertinent part: [*4]

 

"While the Court's rationale is a reasonable one with respect to the compulsory uninsured motorists coverage, supplementary uninsured motorists coverage is an optional additional coverage. The individual insured for supplementary uninsured motorists coverage should not be required to wait for a recovery from the Security Fund on behalf of the insolvent insurer. Since the SUM insurer has a subrogation right against the insolvent insurer, the Security Fund would still remain liable, but the insured would be provided a more prompt recovery from his or her own insurer."

 

(NY Reg, July 8, 1992, at 10).

 

The greater breadth of SUM coverage was recognized by the Court of Appeals in Matter of Government Employees Ins. Co. v Reichel (66 NY2d 1000, 1003 [decided after State-Wide Ins. Co. v Curry, supra]), where it stated that the "statutory allowance for supplementary uninsured motorists insurance coverage expands the 'uninsured motorist' category." In Reichel, the court found that a financially responsible motorist for purposes of the compulsory provisions of Insurance Law § 3420(f)(1), may, under certain circumstances, be considered an uninsured motorist for purposes of Insurance Law § 3420(f)(2).

 

By a parity of reasoning, under the SUM endorsement's expanded definition of uninsured motor vehicle, one whose insurer becomes insolvent is considered uninsured, even though that very same motorist would not be considered uninsured for purposes of the compulsory uninsured motorist provisions of Insurance Law § 3420(f)(1). As such, it is not inconsistent with, nor contrary to, the holding in State-Wide Ins. Co. v Curry (supra), to include within the sweep of the SUM coverage the uninsured motorist claim asserted in the proceeding at bar.

 

FLORIO, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.

 

AMERICAN TRANSIT INS. CO. v. WILFRED

 

Order and judgment (one paper) Supreme Court, New York County (Louis York, J.), entered November 30, 2001, which, in this declaratory judgment action, declared that both insurers are obligated to defend and indemnify the driver and owner of a taxi cab in two underlying actions for personal injuries allegedly sustained in a car accident, and denied plaintiff insurer's motion for a default judgment against plaintiffs in the underlying actions, unanimously modified, on the law and the facts, to grant the motion for a default judgment and to declare plaintiff has no obligation to defend and indemnify plaintiffs in the underlying actions, and otherwise affirmed, without costs.

 

The automobile accident out of which this action, as well as the underlying personal injury actions, arise occurred on February 28, 1998 at 9:50 P.M. when a taxi owned by defendant McMaroro Transit, Inc., and driven by defendant Louis Wilfred, rear-ended a second vehicle on the Van Wyck Expressway. The driver and passenger in the second vehicle commenced a personal injury action against McMaroro Transit and Wilfred, and the passengers in the taxi commenced a second personal injury action against the same defendants. With regard to this action, third-party defendant Empire Mutual Insurance Company ("Empire") had issued an automobile insurance policy to McMaroro, which coverage was "EFFECTIVE FROM MIDNIGHT: 02/28/97 TO MIDNIGHT: 02/28/98." Plaintiff American Transit Insurance Co. ("American Transit") had issued a policy to McMaroro that was effective "FROM 02/28/1998 MIDNIGHT-02/28/1999 MIDNIGHT." American Transit and Empire both claim that their policies were not in effect at the time of the accidents, although American Transit defended McMaroro in the underlying personal injury actions for more than two years.

 

General Construction Law § 19 defines a calendar day as "the time from midnight to midnight." A number of courts, as well as other sources, have noted that the definition of a day is commonly considered to be the 24-hour period running from midnight to midnight (see, Leach v Chu, 150 AD2d 842, lv dismissed 74 NY2d 839; Schampier v Office of Gen. Servs. of State of N.Y., 73 AD2d 1011, affd 52 NY2d 746; Fisk Discount Corp. v Brooklyn Taxicab Trans. Co., 270 App Div 491; Black's Law Dictionary 402 [7th ed 1999]; Webster's Third International Dictionary 578 [1993]; 3 The New Encyclopedia Britannica 923 [15th ed 1998]). Indeed, in The New York Public Library Science Desk Reference, it is noted that [t]oday, there are two systems of counting time: the 12-hour system used extensively around the world, and the 24-hour system used mainly by the United States military and throughout much of Europe. In this system, midnight can be designated as 2400 hours of that day, or 0000 hours of the following day.

 

In Mumuni v Eagle Insurance Company (247 AD2d 315, lv dismissed in part, denied in part 92 NY2d 940), this Court held that the term "midnight" is ambiguous, that the ambiguity should be construed against the insurance company, and that a policy which was effective "'from 12/31/88 midnight to 12/31/89 midnight'" covered the insured from 12:01 A.M. on December 31, 1988, when the insured's prior policy lapsed. Here, since the use of the term "midnight" by both insurers is ambiguous, we find, as did the motion court, that the policies overlap and that both must defend and indemnify McMaroro and Wilfred.

 

We would, in any event, have found that American Transit was obligated to defend and indemnify McMaroro and Wilfred, even though it claims its coverage did not begin until after the accident occurred, because of its representation of the insureds in the two underlying personal injury actions for more than two years before disclaiming coverage, as well as the resulting prejudice to the insureds were plaintiff allowed to withdraw and the defense given over entirely to third-party defendant (see, American Transit Ins. Co. v Mendon Leasing Corp., 241 AD2d 436).

 

Plaintiff also seeks a default judgment declaring that it has no obligation to defend and indemnify the nonappearing defendants, i.e., the cab's passengers and the owner and driver of the other vehicle involved in the accident. Given these defendants' defaults, and a complaint demanding a declaration that plaintiff "has no duty to defend and/or indemnify any of the defendants," we modify solely to declare that plaintiff has no obligation to defend and indemnify the plaintiffs in the underlying actions.

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