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The Rogak Report: 17 March 2006 ** Coverage - Interspousal Lawsuits **

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  • Lawrence Rogak
    AUTO POLICY PROVIDES NO COVERAGE FOR WIFE S SUIT AGAINST INSURED HUSBAND Dattore v. Dattore, NYLJ 3/17/06 (Supreme Court, Bronx County) (ROMAN, j) This
    Message 1 of 1 , Mar 17, 2006
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      Dattore v. Dattore, NYLJ 3/17/06 (Supreme Court, Bronx County)
      (ROMAN, j)

      This personal injury action stemmed from a motor vehicle accident.
      Plaintiff was injured while a passenger in the rear seat of a vehicle
      operated by her husband, the defendant. The accident occurred on
      November 29, 2002, on the southbound New Jersey Turnpike.

      Plaintiff was asleep in the rear of the car, when she felt an impact
      and heard her husband say "oh, my God." She looked up and saw that
      the car was headed for trees to the vehicle's right. Thereafter she
      felt another impact and was thrown from the vehicle, through the
      window and onto the ground.

      Defendant testified at his pre trial deposition that as he drove at
      about 65 miles per hour, he began to feel drowsy. He dozed off and
      when he opened his eyes, he was headed towards a concrete divider on
      his left. He collided with the divider, bounced off and the car began
      to spin. He tried to get control of the vehicle but ultimately wound
      up in a ditch on the what had been the right side of the road.

      Defendant's State Farm Mutual Automobile insurance policy excludes
      coverage for any injury suffered by the insured's spouse. Insurance
      Law 3420(g) states that "No policy or contract shall be deemed to
      insure against any liability of an insured because of death of or
      injuries to his or her spouse or because of injury to, or destruction
      of property of his or her spouse unless express provision relating
      specifically thereto is included in the policy as provided in
      paragraphs one and two of this subsection. This exclusion shall apply
      only where the injured spouse, to be entitled to recover, must prove
      the culpable conduct of the insured spouse."

      The Court held that "The above statute is designed to discourage
      collusive insurance claims between spouses involved in motor vehicle
      accidents. The constitutionality of this provision has been litigated
      and the Court of Appeals has deemed the statute constitutional and
      not in violation of equal protection. Section 3420(g) serves to
      exclude coverage for an insured's liability in instances where an
      insured's spouse is injured due to the culpable conduct of the
      insured. The statute operates to exclude coverage under the
      aforementioned circumstances unless the insurance policy expressly
      declares and provides such coverage. The statute is such that a
      policy is deemed not to provide such coverage unless expressly stated
      and as such, a disclaimer under the statute is not one pursuant to an
      exclusion but rather a disclaimer because the policy never afforded
      coverage in the first instance. Consequently, an insurer not need
      give its insured timely notice of a disclaimer based on §3420(g), and
      will not be estopped from disclaiming coverage when it unreasonably
      delays in disclaiming."

      "Unquestionably, §3420(g) serves to bar any obligation to provide
      coverage for interspousal accidents occurring within this state when
      the policy was drafted." But, held the Court, the same applies even
      if the accident occurs outside New York State, because the laws of
      contract interpretation are the law of the State in which the
      contract was made (citing Employers' Liability Assurance Corporation,
      Ltd. v. Aresty, 11 A.D.2d 331 [1st Dept. 1960]).

      "It is clear that the policy at issue is a policy purchased and
      executed in New York State. The policy does not contain any language
      indicating that the same provides coverage for interspousal
      accidents. In fact, the policy explicitly excludes coverage under
      those circumstances. The case law cited herein makes it abundantly
      clear that §3420(g) serves to proscribe coverage for interspousal
      liability in instances such as the one at bar, except when the policy
      expressly provides for such coverage. That the accident occurred in
      another jurisdiction is of no consequence, since coverage hinges on
      contract law. That law mandates that since the policy was a contract
      executed in this state and subject to its laws, New York law governs.
      New York law mandates that the insurer need not provide coverage
      under these circumstances. Further, the case law indicates that a
      disclaimer pursuant to §3420(g) is not one pursuant to an exclusion
      but is instead a disclaimer based on a circumstance the policy, as
      written, was never meant to cover. As such, State Farm was under no
      obligation to disclaim, timely or otherwise."

      "Given the evidence, that plaintiff is suing her husband for his
      alleged negligence in the operation of his motor vehicle, it is clear
      that §3420(g) applies to the case at bar and as such defendant's
      insurance carrier State Farm Mutual is not obligated to provide
      defendant with coverage nor a defense to the instant action."

      As to liability, the Court held that "While falling asleep while
      driving is not negligence as matter of law, evidence that a defendant
      fell asleep while driving creates a rebuttable presumption of
      negligence. Once such evidence has been tendered it is incumbent upon
      defendant to offer an explanation for his sleep thereby creating a
      triable issue of fact. The reason for this rule is that requiring a
      plaintiff to establish the circumstances under which defendant fell
      asleep would be quite onerous and at times insurmountable. As such,
      the burden of explaining why a defendant fell asleep should rest with
      the defendant who is in the best position to know why he or she fell

      "In any ordinary case, one cannot go to sleep while driving an
      automobile without having relaxed the vigilance which the law
      requires, without having been negligent. It lies within his own
      control to keep awake or cease from driving. And so the mere fact of
      his going to sleep while driving is a proper basis for an inference
      of negligence sufficient to make out a prima facie case, and
      sufficient for a recovery, if no circumstances tending to excuse or
      justify his conduct are proven . . . If such circumstances are
      claimed to have been proven, it then becomes a question of fact
      whether or not the driver was negligent; and, in determining that
      issue, all the relevant circumstances are to be considered, including
      the fact that ordinarily sleep does not come upon one without warning
      of its approach."

      "Plaintiff's motion for partial summary judgment on the issue of
      liability against defendant must be granted. The evidence
      demonstrates that defendant fell asleep while driving. Prior to
      falling asleep, he felt drowsy and felt he could overcome the same.
      After falling asleep and waking up, defendant was headed towards a
      divider which he impacted thereby initiating the accident herein.
      With this evidence, plaintiff has established prima facie entitlement
      to summary judgment as said evidence creates a rebuttable presumption
      that defendant was negligent and the proximate cause of the accident
      herein. Defendant has offered no evidence to explain or rebut the
      presumption. Partial summary judgment must be granted to plaintiff on
      the issue of liability."

      Larry Rogak
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