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The Rogak Report: 02 Sept 2005 ** Coverage - Evidence **

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  • Lawrence Rogak
    WITHOUT POLICY AS EVIDENCE, INSURER CAN T PROVE EXCLUSION DiCristi v. Liberty Mutual Ins. Co., NYLJ 9/02/05 (Supreme Court, Kings County) (RIVERA, j) In
    Message 1 of 1 , Sep 2, 2005
      WITHOUT POLICY AS EVIDENCE, INSURER CAN'T PROVE EXCLUSION

      DiCristi v. Liberty Mutual Ins. Co., NYLJ 9/02/05 (Supreme Court,
      Kings County) (RIVERA, j)

      In December of 2002, plaintiff commenced a personal injury suit in
      Queens County Civil Court against Delroy Stephens. The complaint
      alleged that on April 8, 2002, plaintiff was driving in Kings County
      when he was struck and injured by a vehicle owned and operated by
      Delroy Stephens. A default judgment in the amount of $25,000.00 was
      granted to plaintiff. Liberty Mutual admitted that Delroy
      Stephens'car was covered by an automobile insurance policy issued by
      them. Liberty notified their insured and the plaintiff that they
      were disclaiming coverage based on an exclusion provision of the
      insurance contract pertaining to use of the vehicle as a public or
      livery conveyance. There is no dispute that a police accident report
      was prepared by a New York City police officer which indicated that
      the vehicle which struck Richard Dicristi and left the scene was
      being operated as a "dollar van."

      Pursuant to Insurance Law §3420(d) injured claimants have an
      independent right to seek coverage under a policy of insurance
      regardless of whether the actual insureds have complied with its
      coverage provisions. The court ordered a hearing to determine the
      timeliness and validity of the disclaimer. On April 12, 2005, the
      court conducted such a hearing. Liberty had the burden to prove the
      existence of the disclaimer, the timely notice of its intention to
      disclaim coverage, and its validity. Liberty produced evidence in
      the form of testimony from its employees who investigated the
      accident report and the insurance coverage. However, Liberty did not
      produce as evidence, the original contract.

      "Without the insurance contract itself, any recitation of the
      contract's terms through testimony or other documents in evidence is
      rank hearsay and contrary to the best evidence rule," held the
      Court. "The absence of Liberty Mutual's insurance policy thus
      prevents any finding that a disclaimer under that policy is valid as
      a very threshold matter. As a result, there is no need not address
      the issue of the timeliness of defendant's disclaimer."

      "Defendant's admission of coverage of the offending vehicle is all
      that remains. There is no issue fact as to defendant's liability
      pursuant to Insurance law §3420(a)(2) for the judgement entered
      against its insured based on the insured's negligent operation of
      his vehicle."

      Plaintiff was granted summary judgment for $25,000 plus interest
      from the date of the judgment.

      Happy Labor Day Weekend!
      Larry Rogak
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