Coverage Pointers - Volume IV, No. 21

New Page 1

 

05/21/03            HANFORD v PLAZA PACKAGING CORP.

New York State Supreme Court, Appellate Division, First Department

Workers Compensation Finding of “Accidental” Injury Bars Intentional Tort Claim Against Co-Employee

The motion court properly held that since the Workers’ Compensation Board had determined plaintiff’s injury to be accidental, plaintiff was barred under the doctrine of res judicata from bringing an intentional tort claim against the fellow employee who caused the injury. To permit further adjudication respecting whether plaintiff’s injury was intentionally inflicted after the Board has made a finding to the contrary would not be consonant with the statutory mandate that the Board’s decision be conclusive.

 

05/19/03            MCGIVNEY v LIBERTY MUT. FIRE INS. CO.

New York State Supreme Court, Appellate Division, Second Department

Evidence of Discussion with Liability Carrier Insufficient to Demonstrate Carrier’s Wavier of Statute of Limitations Defense

Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel. The plaintiff failed to offer any evidence “from which a clear manifestation of intent by the defendant to relinquish the protection of the contractual limitations period could be reasonably inferred”. The facts do not show that the plaintiff was misled or lulled into inactivity, thereby losing his right to sue.

 

05/15/03            LACONTE v BASHWINGER INS. AGENCY

New York State Supreme Court, Appellate Division, Third Department

Action Against Insurance Agent Dismissed -- Insured is Presumptively Charged With Knowing Coverage Purchased

For over a decade defendant’s owner, Bashwinger, acted as plaintiffs’ insurance agent procuring various policies covering their home, vehicles and business. Plaintiffs contend that throughout their relationship, they relied upon Bashwinger to make additions or deletions to their policies as requested; they never read their policies and paid the premiums as billed. According to plaintiff, he went to Bashwinger’s office in September 1996 to add coverage on plaintiffs’ homeowners policy for jewelry he had purchased. Finding that Bashwinger was not in, he gave Bashwinger’s secretary a manila envelope containing appraisals and photographs of the jewelry with instructions to procure additional coverage; she assured him that Bashwinger would process the changes. Plaintiff did not follow up on his request. It is undisputed that plaintiffs received a copy of their homeowners policy that contained a schedule of personal property, which did not include the additional jewelry. Thereafter, plaintiffs discovered that the jewelry had been stolen. When they sought to file a claim under their homeowners policy, plaintiffs were informed that the additional coverage had not been procured. Plaintiffs commenced this action seeking to hold defendant liable. Court held that while “insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so,” absent fraud or other wrongful conduct on the part of the insurance agent, an insured is conclusively presumed to know the contents of an insurance policy concededly received, even though the insured did not read or review it.

 

05/13/03            AMERICAN TR. INS. CO. v SARTOR

New York State Supreme Court, Appellate Division, First Department

Because of Statutory Provisions Requiring Taxis to Have Liability Insurance, Taxi Cab Company’s Breach of Notice Provisions Cannot Impact Existence of Coverage

Notwithstanding its disclaimers of coverage due to breach of various policy conditions, plaintiff-insurer was liable, pursuant to both the Vehicle and Traffic Law and the express terms of its policy, for a default judgment obtained by defendant against its insureds. Not only does VTL 370(1) require generally that a private entity engaged in the business of transporting passengers for hire in motor vehicles on public thoroughfares have an insurance policy on file with the Commissioner of Motor Vehicles covering its liability for judgments against it as a result of injuries and damages incurred while conducting such business, but VTL 370(4) states that although failure of such an entity to give specified notice to their insurer of an accident is a misdemeanor, it shall not affect the insurer’s liability to the injured party. Insurance policies issued for this purpose will be construed to contain these statutorily mandated provisions and to further the underlying public policy concerns where the language of the insurance policy justifies it. Moreover, American’s policy expressly provides that none of its provisions shall prejudice the right of anyone other than the insured to recover pursuant to the policy.

 

05/13/03            GREEN DOOR REALTY CORP. v TIG INS. CO. 

Second Circuit (applying New York law)

Question of Fact as to Status of Insurer’s Agent for Purposes of Receiving Notice

Dismissal of a declaratory action to establish excess insurance coverage is vacated, where issues of fact exist as to whether the producer of a policy was the insurer’s agent based on actual or apparent authority for purposes of accepting notice of claims.

 

05/12/03            FENNELL v NEW YORK CENTRAL FIRE INS. CO.

New York State Supreme Court, Appellate Division, Second Department

Insureds’ Son Living with Girlfriend Not a Resident of Insureds’ Household

Paul hit a golf ball, striking plaintiff in the eye. Plaintiff then commenced an action against Paul and his parents to recover damages. After discontinuing his action against Paul’s parents, plaintiff obtained a default judgment against Paul, and commenced an action against defendant-insurer seeking to collect the unpaid judgment. The insurer had issued a liability policy to Paul’s parents, providing coverage for relatives who are residents of their household. Supreme Court determined after trial that Paul did not reside with his parents on the date of the accident. On appeal, the court upheld the finding. Residency for insurance purposes requires something more than temporary or physical presence, and requires at least some degree of permanence and intention to remain. The trial testimony established that before the golf accident, Paul slept at his first wife’s apartment, and on occasion, at the residence of his girlfriend. In late April 1994, Paul moved in with his girlfriend, who testified that Paul was living with her at the time of the incident, and that he stayed at her residence every night. Moreover, Paul’s mother, father and brother each testified that since Paul started living with his girlfriend, he did not reside at the parental home. Although Paul retained his parents’ address on his driver’s license and voter registration card, listed his parents’ address on the police report following the incident, and continued to receive mail at his parents’ house, these circumstances do not establish residency. Accordingly, the Supreme Court properly determined that Paul was not a resident of his parents’ household on the date of the accident.

 

05/12/03            MATTER OF GOVERNMENT EMPLOYEES INS. CO. v SHLOMY

New York State Supreme Court, Appellate Division, Second Department

Underinsurance Policy Providing for Pro Rata Contribution is Primary to Underinsurance Policy Purporting to be Excess

Shlomy was a passenger in a vehicle owned by Barnathan and insured by Auto Owners. The Barnathan vehicle was involved in a two-vehicle collision with a vehicle owned by Amit and insured by Countrywide. The liability policy issued by Countrywide to Amit had liability limits of $25,000. The policy issued by Auto Owners to Barnathan, issued in South Carolina, provided underinsured motorist coverage in the amount of $100,000. It also provided that, if there was other underinsured motorist coverage, Auto Owners would pay only its share of the loss, which would be “the proportion [its] limit of liability bears to the total of all limits which apply.” Shlomy was also covered as an insured under a policy issued by GEICO, to Shlomy’s father, which provided underinsured motorist coverage in the amount of $250,000. It also provided that, if an insured was entitled to underinsured coverage under more than one policy, the insured had to first obtain underinsurance benefits from a policy covering a motor vehicle occupied by the injured person at the time of the accident, in this case the Auto Owners policy. Following the accident, Shlomy brought an underlying action against Amit and Barnathan. After a trial on the issue of liability, the jury returned a verdict finding Amit 100% at fault. Countrywide then offered its policy limits to settle the action. Shlomy’s attorney informed GEICO of the offer, and GEICO consented to its acceptance. Although Auto Owners’ attorney knew of Countrywide’s tender, Shlomy’s attorney did not seek Auto Owners’ consent to accept it. Thereafter, Shlomy filed a claim for underinsurance benefits with GEICO, but not with Auto Owners. Eventually, GEICO commenced this proceeding to permanently stay arbitration or, alternatively, temporarily stay arbitration pending a determination of the issue whether Auto Owners should provide primary underinsurance. GEICO asserted that Shlomy was required to make a claim for underinsurance benefits under the Auto Owners policy before she could recover benefits from GEICO. Auto Owners opposed the petition, claiming that it was not required to provide underinsurance coverage because Shlomy settled the underlying action against Amit without its consent. Furthermore, it asserted that even if it provided underinsurance coverage to Shlomy, “it would be no more than a co-insurer with GEICO”. The court rejected Auto Owners’ contention that Shlomy was precluded from seeking underinsurance motorist benefits from it because she did not obtain its consent to settle the underlying action. Auto Owners’ policy was issued to Barnathan in South Carolina, and, under South Carolina Uninsured Motorist Law, “[n]o underinsured motorist policy may contain a clause requiring the insurer's consent to settlement with the at-fault party”. The court also held that, under the policies as written, Shlomy must first seek underinsurance benefits from Auto Owners. Citing State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, the court held that where one policy provides, in effect, that it is an excess policy and another policy provides for pro rata contribution with other valid and collectible insurance, the excess policy is secondary because the effect of the policy which requires pro rata contribution “was ‘only to require pro rata contribution by other primary insurance’”.

 

05/12/03            STATE FARM MUT. AUTO. INS. CO. v LAGUERRE

New York State Supreme Court, Appellate Division, Second Department

Deliberate Collision Caused in Furtherance of Insurance Fraud Scheme Not a Covered Accident

Within weeks after plaintiff issued insurance policies for vehicles registered to Laguerre, the vehicles were involved in three collisions. The defendant Gozzi was the driver of a vehicle that was struck by a Laguerre vehicle on February 11, 1999. He commenced a personal injury action against Laguerre and the driver of Laguerre’s vehicle. Based on its investigation, the plaintiff concluded that the collisions were not accidents, but were intentionally caused to fraudulently obtain insurance benefits. Plaintiff then commenced this action seeking a declaration that it was not obligated to provide liability coverage for any of the collisions. Supreme Court granted the plaintiff summary judgment with respect to two of the collisions, but denied relief with respect to the February 11, 1999, collision, concluding that there were triable issues of fact. On appeal, the court held that a deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident. Plaintiff established prima facie entitlement to judgment as a matter of law by demonstrating that the February 11, 1999, collision was one of three collisions deliberately caused to fraudulently obtain insurance benefits. In opposition to the motion, Gozzi failed to raise a triable issue of fact as to whether the collision was intentional. Furthermore, plaintiff was not required by Insurance Law § 3420(d) to issue a disclaimer because its denial of coverage was based on a lack of coverage for the incident in the first instance, not an exclusion under the policy.

 

ACROSS BORDERS

 

05/22/03          TRINITY EVANGELICAL LUTHERAN CHURCH v TOWER INS. CO.

Wisconsin Supreme Court

Summary Judgment in Bad Faith Case Appropriate When Insurer Fails to Provide Requested Coverage

The insurance company failed to provide the entire coverage originally requested by the insured. After receiving notice of this problem, the company failed to investigate properly and refused to backdate the coverage. The question before the Supreme Court involved whether summary judgment was appropriate on the bad faith claim. The Supreme Court found that, based on the facts presented in the record, there was but one possible factual conclusion to be drawn: that the insurer acted in bad faith. After the summary judgment was upheld, the court upheld the $3.5 million punitive damages award from the trial court.

Prepared by Monty Todd and Roland M. Franklin, Jr. of Sowell Gray Stepp & Laffitte, L.L.C. in Columbia, South Carolina

 

05/21/03            CENTURY NAT. INS. CO. v TRACY

Illinois Appeals Court

Lack of Driver’s License Precludes Recovery of Underinsured Motorist Coverage

Defendants, brother and sister and owners of a contracting company, obtained automobile insurance from Plaintiff, insuring a pick-up truck. Only the sister is listed as a driver on the application for insurance. The policy expressly excludes from coverage “anyone using a vehicle without a reasonable belief that the person is entitled to do so.” The brother did not have a valid driver’s license due to a previous suspension. However, sister allowed brother to drive the pick-up occasionally. Brother was in an accident and sustained personal injuries. Brother collected $50,000 from the other driver’s insurance company and later attempted to recover an additional amount under the underinsured motorist provisions of Plaintiff’s policy. The Illinois Court of Appeals denied coverage that the policy contained an explicit “unlicensed driver” exclusion. Moreover, the court found that the absence of a driver’s license in and of itself is enough for the exclusion to apply. Finally, the court concluded that finding in favor of the Defendants would violate public policy.

Prepared by Roland M. Franklin, Jr. of Sowell Gray Stepp & Laffitte, L.L.C. in Columbia, South Carolina

 

05/21/03            STATE OF IDAHO v BIBLE MISSIONARY CHURCH

Idaho Supreme Court

Church Exempt From Worker’s Compensation Requirements

Worker’s Compensation Commission sought to impose penalties on Church for its failure to carry worker’s compensation for its pastor. Idaho Supreme Court found that the Church is not engaged in a business for the sake of pecuniary gain because although the Church performs services, it does not receive any financial support from a district, synod, regional or national organization or any other source apart from the donations collected during its worship services.

Prepared by Roland M. Franklin, Jr. of Sowell Gray Stepp & Laffitte, L.L.C. in Columbia, South Carolina

 

05/20/03            CITRANO v HINGHAM MUT. FIRE INS. COMPANY.

Massachusetts Appeals Court

Sewage + Water = Water

The plaintiff sought payment under his homeowners policy for property damage to his finished basement and its furnishings caused by a two-foot flood of water-borne raw sewage that had backed up through a basement toilet during heavy rains. The defendant, issuer of the policy, denied coverage under a policy exclusion that reads: “We do not pay for loss if one or more of the following exclusions apply to the loss, regardless of other causes or events that contribute to or aggravate the loss.... 7. Water Damage--We do not pay for loss which results, from the following: ... b. water which backs up through sewers or drains....” The judge correctly entered summary judgment for the defendant, rejecting the plaintiff’s argument that the exclusion did not apply because the damage was caused by sewage, not water. The water referred to in exclusion 7.b. is not pure tap water or rainwater, but only water that backs up from sewers (or drains). By common usage, as well as by lexical definition, “sewage” implies waste borne in water. Even if the court were to differentiate between the sewer water and the sewage carried in it, the plaintiff’s loss would still be governed by the exclusion because it was the water backup through the sewer line that was the vehicle by which the damaging agent, the sewage, permeated the basement and its furnishings. The water was thus at least a contributing cause of the loss, the whole of which, by the terms of the exclusion, was exempted from coverage.

 

05/19/03            TEXAS ONE-BARRINGTON, LTD. v GEN. STAR INDEM. CO.

Fifth Circuit (Texas)

Leaks Caused by Same Plumbing System but Occurring in Different Buildings are Separate “Occurrences”

Court held that (1) based on precedent from that court, General Star was not liable for costs incurred by the insured in accessing a plumbing system in need of repair; and (2) the plumbing leaks in each of 19 buildings caused by the single installation of a plumbing system were, as a matter of law, “separate occurrences” for purposes of determining deductibles under the excess coverage policy. The court noted that, under Texas law, the proper test was to focus on the events that caused the injuries and gave rise to the insured’s liability, rather than on the number of injurious effects. However, the court did not look to the overarching cause, but on the specific events that caused the losses, separate leaks under each building.

Prepared by Bruce D. Celebrezze and Joseph Pelochino of Celebrezze & Wesley in San Francisco

 

05/19/03            WALKER v HARTFORD FIRE INS. CO.

Ohio Court of Appeals

Employer’s Auto Policy Ambiguous as to Whether Employee is an Insured

An employee of Meijer Department Store, while not in the course of her employment, was fatally injured in a collision with an automobile negligently operated by an uninsured motorist. The employee’s estate filed a civil wrongful death action against the negligent driver. Meijer was insured under a business auto liability policy with UIM coverage and a CGL policy. The estate filed claims against Meijer’s insurers. The Court of Appeals reversed the trial court’s entry of summary judgment for Hartford that the employee was not an insured under Meijer’s auto policy. The court found that the policy ambiguously defined “you” as the named insured, Meijer. The court rejected the argument that the Drive Other Car Coverage endorsement eliminated any ambiguity as to who was an insured under the policy because it listed several individual employees as insureds.

Prepared by Bruce D. Celebrezze and Joseph Pelochino of Celebrezze & Wesley in San Francisco

 

05/16/03            HERBERT A. SULLIVAN, INC. v UTICA MUT. INS. COMPANY

Massachusetts Supreme Judicial Court

Liability Insurer Can Be Held Liable to Insured for Negligent Claim Handling But Not Vicariously Liable for Conduct of Assigned Defense Counsel

Liability carrier can be held liable to insured for negligent claims handling; however, it will not be held vicariously liable for professional negligence of assigned defense counsel. Damages include cost of retention of separate counsel and, in this case, lost profits caused by negligent claims handling.

 

05/15/03            PROGRESSIVE COUNTY MUT. INS. v SINK

Texas Supreme Court

Must Have Permission to Use “Temporary Substitute” Vehicle in Order for Insurance Coverage to Apply

Plaintiff was involved in an automobile accident with McCauley, who was borrowing a vehicle from his employer, Alamo Rent-A-Car. McCauley borrowed the Alamo vehicle because his own truck was disabled. It was uncontested that McCauley did not obtain permission from Alamo to use any of its vehicles and did not believe he had permission to use the car in question. Plaintiff obtained a favorable judgment in his action against McCauley and brought a subsequent action against McCauley’s auto insurance carrier, Progressive County Mutual Insurance Company, based on the policy insuring McCauley’s truck. Plaintiff claimed he was a third party beneficiary of the policy and sought benefits under the policy’s liability coverage. The trial court dismissed plaintiff’s claim against Progressive, holding that the vehicle owned by McCauley’s employer was not covered by the insurance policy issued by Progressive. The Court of Appeals reversed, holding that McCauley was driving a “temporary substitute vehicle” which was covered under the policy, regardless of the fact that he did not have permission to drive that vehicle. The Texas Supreme Court reversed the ruling of the appellate court. The trial court corrected concluded that the vehicle McCauley took from his employer did not constitute a “temporary substitute” vehicle under the policy issued by Progressive. In considering the ordinary, everyday meaning of the terms “temporary substitute,” the Texas Supreme Court stated that the generally accepted meaning did not include taking a vehicle without at least a reasonable belief of entitlement to its use.

Prepared by Bruce Alverson and Karie Wilson of Alverson, Taylor, Mortensen, Nelson & Sanders in Las Vegas

 

05/14/03            KAVRUCK v BLUE CROSS OF CALIFORNIA

California Court of Appeal

Class Certification Not Appropriate on Claims for Fraud and Negligent Misrepresentation When Plaintiff Failed to Allege that Same Material Misrepresentations Were Made to Each Member of the Class

The trial court denied class certification as to plaintiff’s claims for fraud and negligent misrepresentation. The class was made up of health insurance subscribers whose policies were changed so that their premiums were no longer based on their initial enrollment age but on their attained age at the time of renewal. The pleadings and the deposition of the named plaintiff indicated that plaintiff relied on the oral representations of defendant’s agents. The trial court therefore determined that proof as to fraud and misrepresentation would have to be addressed on a case-by-case basis. In affirming the ruling of the trial court, the Appellate Court noted that under California law an inference of reliance arises only when the same material misrepresentations had been communicated to each member of the class. Plaintiff’s Complaint did not allege that the same material misrepresentations had been made to each class member and there was no inference of reliance as to the entire class. Denial of class certification as to the claims for fraud and negligent misrepresentation was therefore appropriate.

Prepared by Bruce Alverson and Karie Wilson of Alverson, Taylor, Mortensen, Nelson & Sanders in Las Vegas

 

05/14/03            BARRY v FIREMAN’S FUND INS. CO.

Florida Court of Appeal

Use of Term “Reckless” Does Not Bring Complaint Allegations Within Policy Meaning of “Accident”

Fireman’s did not have a duty to defend Barry University when former students sued the school following the withdrawal of accreditation for the physical therapy program in which they were enrolled. The students’ material allegations all involved intentional conduct on the part of the University which could not fairly be regarded as an “accident,” despite that two of the complaints alleged that the University “knew or recklessly disregarded facts that should have put it on notice” that its program would not receive full accreditation. The use of the term “reckless” was not dispositive; the factual allegations must be examined to determine whether the harm was expected or intended.

Prepared by Bruce D. Celebrezze and Joseph Pelochino of Celebrezze & Wesley in San Francisco

 

05/12/03          ELLIS COURT APARTMENTS LTD. PARTNERSHIP v STATE FARM FIRE & CAS.

Washington Court of Appeals

Washington Court Won't Apply Manifestation Trigger To Hidden Decay From Water Damage

In a lawsuit arising out of a first party claim for water damage to a condominium, the trial court rejected the insurer’s request that the court use the manifestation trigger rule to determine coverage, and granted the insured summary judgment on the insurer’s other defenses to coverage. The court of appeals affirmed the trial court finding that State Farm’s Apartment Policy is an ‘occurrence’ policy and loss involving collapse caused by hidden decay is a covered peril when the loss occurs during the policy period, even if the insured discovers the loss after the policy expires.

Prepared by Bruce D. Celebrezze and Joseph Pelochino of Celebrezze & Wesley in San Francisco

 

05/09/03          PROGRESSIVE NORTHERN INS. CO. v ENTERPRISE RENT-A-CAR COMPANY OF BOSTON, INC.

New Hampshire Supreme Court

Car Rental Agency Not Required To Furnish Primary Liability Insurance For Negligent Driver

In each of two separate car accidents, the driver alleged to be responsible for the accident was operating a car rented from Enterprise and maintained a personal automobile insurance policy with Progressive. The Progressive policies provide that its coverage is excess when its insured is involved in an accident while occupying a vehicle not owned by the insured. Under New Hampshire’s Financial Responsibility Act, the owner of an automobile is not required to provide primary financial responsibility for the benefit of the driver. Thus, Enterprise was not required to carry liability insurance for the benefit for the negligent drivers.

Prepared by Bruce D. Celebrezze and Joseph Pelochino of Celebrezze & Wesley in San Francisco

 

 

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HANFORD v PLAZA PACKAGING CORP.

 

Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered March 26, 2002, which, in this action for intentional infliction of emotional distress, granted defendant-respondent's motion for summary judgment dismissing the complaint as against him, affirmed, without costs.

 

The motion court properly held that since the Workers' Compensation Board had determined plaintiff's injury to be accidental, plaintiff was barred under the doctrine of res judicata from bringing an intentional tort claim against the fellow employee who caused the injury (see Bardere v Zafir, 102 AD2d 422, 425, affd 63 NY2d 850). To permit further adjudication respecting whether plaintiff's injury was intentionally inflicted after the Board has made a finding to the contrary would not be consonant with the statutory mandate that the Board's decision be conclusive (see O'Connor v Midiria, 55 NY2d 538, 541).

 

All concur except Tom and Mazzarelli, JJ. who dissent in a memorandum by Tom, J. as follows:


TOM, J. (dissenting)

 

Inasmuch as I conclude that plaintiff, by seeking benefits under Workers' Compensation with respect to her employer, exercised no election of remedies as to the individual defendant under the circumstances of this case, I would reverse and reinstate the complaint against him.

 

Plaintiff was employed by defendant Plaza Packaging Corp. during 1995 and 1996, at which time she was supervised by defendant Morton Landowne. She alleges that during this period of time, he maintained a pattern of conduct whereby he constantly [*2]sexually harassed her. Among the incidents was one on February 27, 1996, when he tried to videotape her in the company locker room while she was showering after having used the company gym. As she prepared to take a shower, she discovered videotape equipment, wrapped in a towel on a shelf. She confronted Landowne, who had been the only other person in the vicinity at the time. He initially denied it but, according to plaintiff, eventually engaged in a pattern of behavior that could be construed to be close to a concession. In any event, in his affidavit in support of his motion for partial summary judgment in the present proceeding, he has essentially conceded his wrongdoing. When she replayed the tape, she saw herself on it, although, apparently, she had not yet disrobed. Her employers were initially supportive, but she soon realized that no action would be taken against Landowne, who was their top salesperson. She claims several psychological injuries. As a consequence, she left that employment. She applied for Workers' Compensation benefits on April 2, 1996, specifically alleging psychological injuries resulting from the February 27, 1996 incident. At the April 4, 1996 Workers' Compensation hearing, the ALJ determined that she suffered post-traumatic stress as a consequence of this incident, which was characterized as being accidental.

 

By summons and verified complaint dated September 10, 1997, plaintiff commenced the present action, sounding in various tort theories against Plaza Packaging, various officers individually, and Landowne. Defendant Landowne answered with affirmative defenses and a counterclaim on or about October 27, 1997. By notice of motion dated April 25, 2001, Landowne moved for summary judgment dismissing those causes of action asserted against him. In his affirmation in support, as noted, and as contrasted with his answer, he essentially conceded plaintiff's claims, though he contended that he had not been acting rationally and, alternatively, that he intended to use the tape as leverage to ensure her repayment of a loan to him. However, he also contended that her election of Workers' Compensation as a remedy barred subsequent civil remedies against him as a fellow worker. The IAS court concluded that dismissal was required by Workers' Compensation Law § 11, which states that, under the Workers' Compensation Law, "[t]he liability of an employer . . . shall be exclusive and in place of any other liability whatsoever . . ." absent circumstances not present here. Our majority agrees. However, I respectfully note that such a conclusion is a [*3]misreading of the statute and its applicability to these circumstances.

 

Although it has been administratively determined that the placement of the videotape equipment was accidental as regards the employer — a result in which I concur and to which I would, in any event, defer — that finding cannot reasonably be construed, either in its terms or under these facts, to mean that it was accidental as regards this individual defendant. In fact, he concedes that his conduct was intentional, if, in his view, misguided. It cannot reasonably be maintained that Landowne acted accidentally as regards plaintiff. The question then arises whether he is to be afforded the protection of the co-employee rule.

 

The Court of Appeals has made clear that in order for a co- employee to have the protection of the exclusivity provision, he or she "must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort" (Maines v Cronomer Valley Fire Dept., 50 NY2d 535, 543). The policy reasons for protecting a fellow employee who has been working within the scope of his or her employment simply do not apply to a situation where that fellow employee is neither acting within the scope of employment nor acting merely negligently. In Maines, the plaintiff and several individual defendants were firemen. They attended a meeting at the firehouse, during which plaintiff was inducted into the fire department's senior rank, a ceremony that apparently was traditionally accompanied by a hazing ritual. The fellow employees, though ostensibly within an employment context, were rough-housing with the plaintiff, which caused his injuries. Though plausibly not intended to injure him, nevertheless the conduct also plausibly constituted an intentional tort. In any event, the conduct had far departed from the individual defendants' responsibilities as firemen and they were not protected by the exclusivity provisions of the statute. So, too, in the present case: Landowne's employment responsibilities extended to sales and supervision, and clearly did not encompass an attempt to videotape a female co-worker as she undressed and showered, and even if his motivation is accepted at face value — using the videotape to recover on a loan; this, too, so far departed from his employment responsibilities as to negate the policy reasons for the statutory protection. As noted by the Court of Appeals in Maines (at 545), citing to one of our own older decisions (Mazarredo v [*4]Levine, 274 App Div 122, 126-127), nothing in the statute was intended to provide a defense to the perpetrator of an intentional tort but, rather, the statute was intended to protect a fellow employee from the consequences of negligence occurring during employment. More significantly, "[t]he commission of an assault by one employee upon another in the course and arising out of the employment may properly be deemed accidental from the standpoint of the employer as an untoward event not expected or intended. The same, however, can hardly be said for the perpetrator of the assault. It seems unreasonable to suppose that the Legislature intended to give statutory protection in the form of immunity from suit for a deliberate and intentional wrongful act" (Maines, supra at 454, quoting Matter of Berenberg v Park Memorial Chapel, 286 App Div 167, 169). The application of that very logic to the present case is inescapable. We need not disturb the administrative determination that the act was accidental from the standpoint of the employer, in order to conclude that it was intentionally done by the fellow employee. By similar reasoning res judicata logically ought not bar the present action when the finding of accidental causation had applied to the employer rather than to the co-employee intentional tortfeasor, whose liability is predicated on a completely different legal theory (cf. Bardere v Zafir, 102 AD2d 422, affd 63 NY2d 850). Notably, recent case law recommends caution when a party seeks to avail himself of issue preclusion to bar judicial proceedings on the basis of administrative determinations when different issues and different legal theories may be involved (Jeffreys v Griffin, __ AD2d __, 749 NYS2d 505). Accordingly, I would reverse and reinstate the complaint as against defendant Landowne.

 

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 20, 2003

 

MCGIVNEY v LIBERTY MUT. FIRE INS. CO.

 

In an action to recover damages for breach of an insurance contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated June 5, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. "Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel" (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968; see Shah v Cambridge Mutual Fire Ins. Co., AD2d [2d Dept, Apr. 28, 2003]). The plaintiff failed to offer any evidence "from which a clear manifestation of intent by the defendant to relinquish the protection of the contractual limitations period could be reasonably inferred" (Gilbert Frank Corp. v Federal Ins. Co., supra at 968). The facts do not show that the plaintiff was misled or lulled into inactivity, thereby losing his right to sue. Therefore, the defendant's motion for summary judgment dismissing the complaint was properly granted (see Culinary Inst. of Am. v Aetna Cas. & Sur. Co., 151 AD2d 638, 639; McGoey v Ins. Co. of N. Am., 57 AD2d 945).

 

FLORIO, J.P., FEUERSTEIN, FRIEDMANN and CRANE, JJ., concur.

 

LACONTE v BASHWINGER INSURANCE AGENCY

 

Peters, J.

Appeal from an order of the Supreme Court (Best, J.), entered February 28, 2002 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.

 

For over a decade defendant's owner, William Bashwinger, acted as plaintiffs' insurance agent procuring various policies covering their home, vehicles and business. Plaintiffs contend that throughout their relationship, they relied upon Bashwinger [*2]to make additions or deletions to their policies as requested; they never read their policies and paid the premiums as billed.

 

According to plaintiff Robert Laconte, he went to Bashwinger's office in September 1996 to add coverage on plaintiffs' homeowner's policy for jewelry he had purchased. Finding that Bashwinger was not in, he gave Bashwinger's secretary a manila envelope containing appraisals and photographs of the jewelry with instructions to procure additional coverage; she assured him that Bashwinger would process the changes. Laconte did not follow up on his request. It is undisputed that plaintiffs received a copy of their homeowner's policy, effective April 13, 1997, that contained a schedule of personal property which did not include the additional jewelry.

 

In May 1997, plaintiffs discovered that the jewelry appraised and photographed for defendant had been stolen. When they sought to file a claim under their homeowner's policy, plaintiffs were informed that the additional coverage had not been procured. Plaintiffs commenced this action seeking to hold defendant liable. After joinder of issue and discovery, defendant unsuccessfully moved for summary judgment. This appeal ensued.

 

While "'insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so'" (Arthur Glick Truck Sales v Spadaccia-Ryan-Haas, Inc., 290 AD2d 780, 781 [2002], quoting Murphy v Kuhn, 90 NY2d 266, 270 [1997]; see Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737 [2000]), absent fraud or other wrongful conduct on the part of the insurance agent, an insured is conclusively presumed to know the contents of an insurance policy concededly received, even though the insured did not read or review it (see Brownstein v Travelers Cos., 235 AD2d 811, 813 [1997]; see also Hess v Baccarat, 287 AD2d 834, 836 [2001]; Rogers v Urbanke, 194 AD2d 1024, 1024-1025 [1993]). While we have recognized exceptions to this presumption where there is an affirmative misrepresentation made by an [*3]insurance agent regarding coverage (see Kyes v Northbrook Prop. & Cas. Ins. Co., supra) or a failure by such agent to correct a clear misimpression created by the binder or policy (see Arthur Glick Truck Sales v Spadaccia-Ryan-Haas, Inc., supra), those situations were not presented here. Accordingly, without evidence sufficient to overcome plaintiffs' presumptive knowledge of the contents of their policy, we find error in the denial of defendant's motion for summary judgment.

 

Mercure, J.P., Crew III, Rose and Kane, JJ., concur.

 

ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendant and complaint dismissed.

 

AMERICAN TRANSIT INS. CO. v SARTOR

 

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered March 15, 2002, which granted plaintiff American Transit Insurance Company's (American) motion for summary judgment declaring that its disclaimer of coverage to defendants Utica Taxi Center, Inc. (Utica), Pierre Toussaint and Julian Mesamours was proper and that it had no obligation to pay a judgment rendered against said defendants, and denied the cross motion of defendant Anthony Sartor to preclude plaintiff from disclaiming liability coverage and to direct plaintiff to pay Mr. Sartor the judgment rendered against the other defendants, unanimously reversed, on the law, with costs, plaintiff's motion for summary judgment denied, defendant Sartor's cross motion to preclude plaintiff from disclaiming liability coverage for its insureds granted, and plaintiff directed to pay Mr. Sartor the $100,000 default judgment with 9% interest from March 30, 2001. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered January 14, 2002, which granted plaintiff's motion for summary judgment, denied defendant's cross motion and directed the parties to settle judgment, unanimously dismissed, as subsumed in the appeal from the ensuing judgment.

 

Notwithstanding its disclaimers of coverage due to breach of various policy conditions, plaintiff American is liable, pursuant to both the Vehicle and Traffic Law and the express terms of its policy, for the default judgment obtained against its insureds by defendant Sartor. Not only does VTL 370(1) require generally that a private entity engaged in the business of transporting passengers for hire in motor vehicles on public thoroughfares [*2]have an insurance policy on file with the Commissioner of Motor Vehicles covering its liability for judgments against it as a result of injuries and damages incurred while conducting such business, but VTL 370(4) states that although failure of such an entity to give specified notice to their insurer of an accident is a misdemeanor, it shall not affect the insurer's liability to the injured party. Insurance policies issued for this purpose will be construed to contain these statutorily mandated provisions and to further the underlying public policy concerns where the language of the insurance policy justifies it
(see Sandolovich v United States Fid. & Guar. Co., 142 Misc 463, 464; Devlin v New York Mut. Cas. Taxicab Ins. Co., 123 Misc 784, 785-786, mod on other grounds 213 AD 152 [cases construing the predecessor statutes]). Moreover, American's policy expressly provides that none of its provisions shall prejudice the right of anyone other than the insured to recover pursuant to the policy (Paragraph 9), that it is liable for its share of any judgment against the insured [the full amount of the judgment here], plus costs, expenses and post-judgment interest (Paragraph 2), that the owner of the vehicle or anyone legally responsible for its use, i.e., Utica, is an insured (Paragraph 12), and that only after American has paid a loss under the policy, due directly or indirectly to its insured's breach of policy conditions, shall American be entitled to reimbursement from the insured (Paragraph 14).

 

FENNELL v NEW YORK CENTRAL FIRE INS. CO.

 

In an action pursuant to Insurance Law § 3420(a)(2) to collect an unpaid judgment the plaintiffs obtained in a personal injury action in the Supreme Court, Dutchess County, entitled Fennell v Kane under Index No. 342/96, upon the default in answering or appearing of Paul Kane, the alleged insured of the defendant New York Central Mutual Fire Insurance Company, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Hillery, J.), dated April 15, 2002, which, after a nonjury trial pursuant to CPLR 3212(c), in effect, granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment.

ORDERED that the order is affirmed, with costs.

 

On July 29, 1994, Paul Kane (hereinafter Paul) hit a golf ball while golfing at Dinsmore Golf Course. The ball struck the plaintiff Robert D. Fennell in the eye, causing its loss. The injured plaintiff and his wife (hereinafter the plaintiffs) commenced an action to recover damages for personal injuries against Paul and his parents, James Kane and Carol Kane. The plaintiffs discontinued their action against Paul's parents, and a judgment was obtained against Paul in the sum of $600,150 upon his default in answering or appearing.

The plaintiffs commenced the instant action against New York Central Mutual Fire Insurance Company (hereinafter Central Mutual) seeking to collect on the unpaid default judgment they had obtained against Paul. Central Mutual had issued a liability insurance policy to Paul's parents, who resided in Putnam Valley. This policy provided coverage for relatives who are residents of the parents' household. Central Mutual moved and the plaintiffs cross-moved for summary judgment. The Supreme Court found the existence of a triable issue of fact as to Paul's residence at the time of the accident. After conducting a trial to establish whether Paul was a resident of his parents' home on July 29, 1994, the Supreme Court determined that Paul did not reside with his parents on the date of the accident.

 

Residency requires something more than temporary or physical presence, and requires at least some degree of permanence and intention to remain (see Canfield v Peerless Ins. Co., 262 AD2d 934; Commercial Mut. Ins. Co. v Wagschall, 256 AD2d 300, 301; Kradjian v American Mfrs. Mut. Ins. Co., 206 AD2d 801, 802; New York Cent. Mut. Fire Ins. Co. v Kowalski, 195 AD2d 940, 941; Hollander v Nationwide Mut. Ins. Co., 60 AD2d 380, 383).

 

The trial testimony established that in 1994, prior to the golf accident, Paul slept at his first wife's apartment, and on occasion, at the residence of his girlfriend, Diane. In late April 1994, Paul moved in with Diane. Diane testified that Paul was living with her at the time of the incident, and that he stayed at her residence every night.

 

Paul's mother testified that since Paul started living with Diane in April 1994, he did not reside at the parental home. Paul's father testified that on the date of the incident, Paul was living in Peekskill with Diane. Moreover, Paul's brother testified that on the date of the incident, Paul was living with Diane.

Although Paul retained his parents' address on his driver's license and voter registration card, listed his parents' address on the police report following the incident, and continued to receive mail at his parents' house, these circumstances do not establish residency (see Matter of American Nat. Prop. & Cas. Co. v Chulack, 265 AD2d 550, 550-551). Accordingly, the Supreme Court properly determined that Paul was not a resident of his parents' household on July 29, 1994.

 

The plaintiffs' remaining contentions either are unpreserved for appellate review or without merit.

 

LUCIANO, J.P., ADAMS, TOWNES and CRANE, JJ., concur.

 

MATTER OF GOVERNMENT EMPLOYEES INS. CO. v SHLOMY

 

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an underinsured motorist claim, and, in effect, for a judgment declaring that Auto Owners Insurance Company is required to provide primary underinsured motorist benefits, the petitioner appeals from so much of an order of the Supreme Court, Kings County (Garry, J.), dated February 11, 2002, as denied the petition.

 

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellant, the petition is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Auto Owners Insurance Company is required to provide primary underinsured motorist benefits.

 

On March 3, 1995, Ayelet Salem Shlomy was a passenger in a vehicle owned by Henry Barnathan and insured by Auto Owners Insurance Company (hereinafter Auto Owners). The Barnathan vehicle was involved in a two-vehicle collision with a vehicle owned by Yaacob Amit and insured by nonparty Countrywide Insurance Company (hereinafter Countrywide). Shlomy allegedly sustained serious personal injuries in the collision.

The liability policy issued by Countrywide to Amit had liability limits of $25,000. The policy issued by Auto Owners to Barnathan (hereinafter the Auto Owners policy), issued in South Carolina, provided underinsured motorist coverage in the amount of $100,000. It also provided, inter alia, that if there was other underinsured motorist coverage, Auto Owners would pay only its share of the loss, which would be "the proportion [its] limit of liability bears to the total of all limits which apply." Shlomy was also covered as an insured under a liability policy issued by the petitioner, Government Employees Insurance Company (hereinafter GEICO), to Shlomy's father. That policy provided underinsured motorist coverage in the amount of $250,000. It also provided, in relevant part, that if an insured was entitled to underinsured coverage under more than one policy, the insured had to first obtain underinsurance benefits from a policy covering a motor vehicle occupied by the injured person at the time of the accident, in this case the Auto Owners policy.

 

Following the accident, Shlomy brought an action against Amit and Barnathan to recover damages for the personal injuries she sustained in the accident. After a trial on the issue of liability, the jury returned a verdict finding Amit 100% at fault in the happening of the accident. After the liability verdict, Countrywide offered to tender the full amount of its policy to settle the action. Shlomy's attorney informed GEICO of this offer, and GEICO consented to its acceptance. Although Auto Owners' attorney knew of Countrywide's tender of the policy limits, Shlomy's attorney did not seek Auto Owners' consent that she accept it. Nor, however, did Auto Owners' attorney object to is acceptance.

 

Thereafter, Shlomy filed a claim for underinsurance benefits with GEICO, but apparently not with Auto Owners. Shlomy and GEICO could not settle the claim, leading Shlomy to file a demand for arbitration of her claim. Eventually, GEICO commenced the instant proceeding in the Supreme Court, Kings County, pursuant to CPLR 7503(c) to permanently stay arbitration or, alternatively, inter alia, temporarily stay arbitration pending a determination of the issue of whether Auto Owners should provide primary underinsurance. In its petition, GEICO asserted that pursuant to its policy, Shlomy was required to make a claim for underinsurance benefits under the policy covering the vehicle in which she was an occupant (i.e., the Auto Owners policy) before she could recover underinsurance benefits from GEICO.

 

Auto Owners opposed the petition, claiming that it was not required to provide underinsurance coverage because Shlomy settled the underlying action against Amit without its consent. Furthermore, it asserted that even if it provided underinsurance coverage to Shlomy, "it would be no more than a co-insurer with GEICO" because of the provision in its policy which provided that its share of any loss was limited to "the proportion [its] limit of liability bears to the total of all limits which apply."

 

In response, Shlomy cross-petitioned, inter alia, for a determination of "the proportion of underinsurance the insurers are responsible for once there is an award." Auto Owners opposed the cross petition on the ground that Shlomy failed to serve it with copies of the pleadings in the underlying action, as required by South Carolina law. In its partial opposition to the cross petition, GEICO stated that it "is not disputing or disclaiming underinsurance motorist coverage," but rather, that it is merely seeking a declaration that Auto Owners must afford primary underinsurance coverage pursuant to the terms of the GEICO policy.

 

By order of the Supreme Court, Kings County, dated September 21, 2001, Auto Owners and Barnathan were added as additional respondents to the instant proceeding, and the parties were directed to appear before the court to resolve the outstanding issues. By order dated February 11, 2002, the Supreme Court denied the remainder of GEICO's petition and dismissed the proceeding, finding that GEICO was estopped from denying underinsurance coverage to Shlomy. In effect, the court also denied Shlomy's cross petition. On appeal by GEICO, we reverse the order insofar as appealed from by granting the petition and directing the entry of a judgment declaring that Auto Owners provide primary underinsurance benefits in the subject arbitration.

 

To the extent that it contends that the Supreme Court lacked personal jurisdiction over it, Auto Owners waived this argument by appearing and opposing the petition and cross petition on the merits (see Matter of State Farm Mut. Ins. Co. v Genao, 175 AD2d 164).

Next, we reject Auto Owners' contention that Shlomy is precluded from seeking underinsurance motorist benefits from it because she did not obtain its consent to settle the underlying action against Amit. As noted above, the Auto Owners' policy was issued to Barnathan in South Carolina, and its underinsured motorist endorsement provided that if it conflicted with the South Carolina Uninsured Motorists Law, the endorsement was "changed to comply with the law." Under the South Carolina Uninsured Motorist Law, "[n]o underinsured motorist policy may contain a clause requiring the insurer's consent to settlement with the at-fault party" (Code of Laws of South Carolina § 38-77-160). Thus, Auto Owners could not require that Shlomy obtain its consent to settle the underlying personal injury action against Amit before obtaining underinsurance motorist benefits from it. Even if Shlomy was required to obtain Auto Owners' consent to settle that action, Auto Owners waived that policy provision by its failure to disclaim coverage on that basis. By letter dated June 26, 1995, Shlomy's counsel informed Auto Owners that Shlomy would be making a claim for underinsurance benefits under the Auto Owners policy. However, Auto Owners never disclaimed coverage of Shlomy's claim on any basis (see Insurance Law § 3420[d]; Matter of Merchants Mut. Ins. Co. v Falisi, 99 NY2d 568; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028; Markevics v Liberty Mut. Ins. Co., 278 AD2d 285, affd 97 NY2d 646).

 

We also agree with GEICO that the Supreme Court improperly determined that it was estopped from denying underinsurance coverage for Shlomy. As previously noted, GEICO conceded before the Supreme Court that it was not disclaiming underinsurance motorist coverage, but rather, seeking a determination that Auto Owners must afford primary underinsurance coverage under the facts of this case.

 

We agree with GEICO that, under the policies as written, Shlomy must first seek underinsurance benefits from Auto Owners. In situations such as the instant case, where one policy provides, in effect, that it is an excess policy and another policy provides for pro rata contribution with other valid and collectible insurance, the Court of Appeals has held that the excess policy is secondary because the effect of the policy which requires pro rata contribution "was 'only to require prorata contribution by other primary insurance'" (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 373, quoting General Acc. Fire & Life Assur. Co. v Piazza, 4 NY2d 659, 669).

 

Auto Owners' remaining contentions are without merit.

 

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

 

STATE FARM MUT. AUTO. INS. CO. v LAGUERRE

 

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to provide liability coverage to the defendant Jacques Laguerre for a motor vehicle collision which occurred on February 11, 1999, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Garry, J.), dated May 23, 2002, as denied that branch of its motion which was, in effect, for summary judgment on so much of the complaint as seeks a declaration that it is not obligated to provide, among other things, liability coverage to the defendant Jacques Laguerre for the motor vehicle collision which occurred on February 11, 1999, and granted that branch of the cross motion of the defendant Peter A. Gozzi which was to declare that the plaintiff is obligated to defend and indemnify Jacques Laguerre in an action entitled Gozzi v Jones, Index No. 111255/01, now pending in the Civil Court, New York County.

 

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was, in effect, for summary judgment on so much of the complaint as seeks a declaration that it is not obligated to provide, among other things, liability coverage to the defendant Jacques Laguerre for the motor vehicle collision which occurred on February 11, 1999, is granted, that branch of the cross motion of the defendant Peter A. Gozzi which was to declare that the plaintiff is obligated to defend and indemnify Jacques Laguerre in an action entitled Gozzi v Jones, Index No. 111255/01, now pending in the Civil Court, New York County, is denied, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment so declaring.

Within weeks after the plaintiff issued insurance policies for vehicles registered to the defendant Jacques Laguerre, the vehicles were involved in three collisions. The defendant Peter A. Gozzi was the driver of a vehicle which was struck by a Laguerre vehicle on February 11, 1999. He commenced a personal injury action against Laguerre and the driver of Laguerre's vehicle. Based on its investigation, the plaintiff concluded that the collisions were not accidents, but were intentionally caused to fraudulently obtain insurance benefits. The plaintiff then commenced this action seeking a declaration, inter alia, that it was not obligated to provide liability coverage for any of the collisions. The Supreme Court granted the plaintiff summary judgment with respect to two of the collisions, but denied relief with respect to the February 11, 1999, collision, concluding that there were triable issues of fact. Although it found the existence of triable issues of fact, the Supreme Court nevertheless granted that branch of Gozzi's cross motion which was for a declaration that the plaintiff was obligated to defend and indemnify Laguerre in the underlying personal injury action.

 

A deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751). The plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the February 11, 1999, collision was one of three collisions deliberately caused to fraudulently obtain insurance benefits. In opposition to the motion, Gozzi failed to raise a triable issue of fact as to whether the collision was intentional. Contrary to Gozzi's contention, the plaintiff was not required by Insurance Law § 3420(d) to issue a disclaimer because its denial of coverage was based on a lack of coverage for the incident in the first instance, not an exclusion under the policy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 200; Zappone v Home Ins. Co., 55 NY2d 131; Matter of Metro Med. Diagnostics v Eagle Ins. Co., supra at 752).

RITTER, J.P., ALTMAN, KRAUSMAN and CRANE, JJ., concur.

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