The Rogak Report: 17 March 2006 ** Coverage - Interspousal Lawsuits **
- AUTO POLICY PROVIDES NO COVERAGE FOR WIFE'S SUIT AGAINST INSURED
Dattore v. Dattore, NYLJ 3/17/06 (Supreme Court, Bronx County)
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."