New York Cent. Mut. Fire Ins. Co. v Wood (2006 NY Slip Op 50288(U))

Supreme Court, Schoharie County

05-0427

FLINK SMITH, LLC

By: JEFFREY D. WAIT, ESQ., of counsel

for Plaintiff

CAPASSO & MASSARONI, LLP

By: JOHN R. SEEBOLD, ESQ., of counsel

for Defendant Wood

HANSON & FISHBEIN

By: MARK O, CHIECO, ESQ., of counsel

for Defendant Progressive

Dan Lamont, J.

In this action for a declaratory judgment, plaintiff New York Central Mutual Fire Insurance Company (“New York Central”) moves this Court for a judgment declaring that defendant Progressive Northeastern Insurance Company (“Progressive”) has an obligation to provide insurance coverage to defendant Charles Young (“Young”) in connection with underlying claims by defendant Amber M. Wood (“Wood”) for money damages for personal injuries allegedly caused to her by defendant Young’s motor vehicle. Defendant Progressive cross-moves this Court for a judgment declaring that Progressive has no obligation to provide insurance coverage to defendant Young based upon his “intentional act” which constitutes an exclusion from coverage under Young’s automobile insurance policy with Progressive. [*2]Defendant Wood does not oppose New York Central’s motion; however, she does oppose Progressive’s cross-motion. Defendant Young has not answered the Complaint or otherwise appeared in this action for a declaratory judgment.

BACKGROUND

New York Central previously brought a proceeding to stay the supplemental uninsured motorist (“SUM”) arbitration between New York Central and Wood (Index No.05-0182). By Interim Decision/Order dated June 30, 2005, this Court adjourned such proceeding to allow New York Central to commence this declaratory judgment action and to obtain personal jurisdiction over all of the necessary parties including Young. The following background facts are substantially taken from such Interim Decision/Order.

On May 29, 2004, respondent Wood was camping with friends in the Town of Berne, County of Albany. Wood was the sole occupant of a certain camping tent. At approximately 6:15 a.m., Young ran over the tent with his automobile and thereby caused serious physical injuries to Wood. Young’s automobile was insured by Progressive. Earlier in the evening, Young’s friend had been beaten up by someone, so Young drove over the tent to “set them straight”. According to Young’s statement recorded by New York Central, Young did not know and had never met Wood before the incident.

On August 19, 2004, in County Court, County of Albany, Young pled guilty to Attempted Assault in the First Degree in violation of Penal Law §§ 110/120.10(3) in return for an agreed upon determinate sentence of imprisonment of no more than 11 years. Assault in the First Degree under Penal Law § 120.10(3) is defined as follows: “A person is guilty of assault in the first degree when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.” (emphasis supplied) During his plea colloquy, Young stated that he did not know someone was in the tent that he drove over, but that he did know that 6:00 a.m. would be a normal time for someone to be in a camping tent.

On or about July 15, 2004, Progressive disclaimed insurance coverage for the accident based upon Young’s intentional act. Young’s insurance policy included the following language under exclusions from coverage: “6. Bodily injury or property damage caused by the intentional act of an insured person or at the direction of an insured person.”

On the date of the accident, Wood’s motor vehicle was insured by New York Central with uninsured/underinsured motorist coverage in the amount of $50,000. Based upon Progressive’s denial of insurance coverage for Young, Wood on or about March 15, 2005 requested arbitration pursuant to the uninsured/underinsured coverage portion of her policy with New York Central. The arbitration proceeding previously scheduled for May 12, 2005 has been temporarily stayed. New York Central has now brought the instant action for a declaratory judgment.

THE LAW: INTENTIONAL ACT EXCLUSION

“Not every intentional act falls within the parameters of an insurance policy’s intentional acts exclusion since insurable accidental results may flow from intentional causes'” (Carmean v. Royal Indemnity Co., 302 AD2d 670, 671 [3rd Dept. 2003], citing Slayko v. Security Mutual Insurance Co., 98 NY2d 289, 293 [2002]). “[I]n deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual or unforeseen” (Agoado Realty Corp. v. United Intl. Ins. Co., 95 NY2d 141,145 [2000]). “The critical question is whether the harm that resulted *** could have been other than harm intentionally [*3]caused’ within the meaning of the policy exclusion” (Allstate Ins. Co. v. Mugavero 79 NY2d 153, 159 [1992];see also, Peters v. State Farm Fire and Casualty Co., 306 AD2d 817 [4th Dept. 2003]; aff’d as modified 100 NY2d 634 [2003]). In other words, the issue presented herein is “whether there is any possible factual or legal basis upon which to find that the bodily injuries inflicted upon [Wood] were not expected or intended’ by [Young]” (Smith v. New York Central Mutual Ins. Co., 13 AD3d 686 [3rd Dept. 2004], quoting Pennsylvania Millers Mut. Ins. Co. v. Rigo, 256 AD2d 769, 770 [1998], quoting Home Mut. Ins. Co. v. Lapi, 192 AD2d 927, 928 [3rd Dept. 1993]).

The Appellate Division, Third Department in Progressive Northern Ins. Co. v. Rafferty, 17 AD3d 888 [3rd Dept. 2005], has recently stated the following:

“It is now well settled that there exists a narrow class of cases in which the intentional act exclusion applies regardless of the insured’s subjective intent’ (Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002]). In such cases, the intentional act exclusion [applies] if the injury [is] inherent in the nature’ of the wrongful act’ (id. at 293, quoting Allstate Ins. Co. v Mugavero, 79 NY2d 153, 161 [1992]). An injury is held to be inherent in the nature’ of an act when the act is so exceptional that cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm’ (Allstate Ins. Co. v Mugavero, supra at 160-161).

“In these type of cases, the theoretical possibility that the insured lacked the subjective intent to cause the harm’ (Pistolesi v Nationwide Mut. Ins. Co., 223 AD2d 94, 97 [1996], lv denied 88 NY2d 816 [1996]) does not preclude a finding that, for the purposes of the policy’s intentional act exclusion, such injuries are as a matter of law intentionally caused’ (Allstate Ins. Co. v Mugavero, supra at 161; see Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 771 [1998]; Doyle v Allstate Ins. Co., 255 AD2d 795, 796-797 [1998]).” (at page 889)

DISCUSSION

An insurance company seeking to invoke a policy exclusion must “establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies to the particular case” (Continental Casualty Company v. Rapid-American Corp., 80 NY2d 640, 652 [1993]). Exclusionary language in an insurance policy must be strictly and narrowly interpreted, and when exclusionary language is ambiguous “it is the insurer’s burden to prove that the construction it advances is not only reasonable, but also that it is the only fair [one]” (Boggs v. Commercial Mutual Insurance Company, 220 AD2d 973, 974 [Third Dept. 1995]). In Pepper v. Allstate Insurance Company (20 AD3d 633 [3rd Dept. 2005]), the Appellate Division, Third Department recently stated: “[W]hen an insurance policy’s meaning is not clear or is subject to different reasonable interpretations, ambiguities must be resolved in the insured’s favor and against the insurer (see Little v. Blue Cross of W. NY, 72 AD2d 200, 203 [1980]; see also Boggs v. Commercial Mut. Ins. Co., 220 AD2d 973, 974 [1995]).” (at page 635)

Since Young has given a couple of statements indicating that he did not intend to injure Wood and that he did not know that anyone was in the tent while knowing that a camping tent is normally occupied at 6:15 in the morning this Court holds and determines that for Progressive’s intentional act policy exclusion to apply, Wood’s injuries must have been “inherent in the nature” [*4]of Young’s wrongful act (Slayko v. Security Mutual Ins. Co., supra, 293; Allstate Ins. Co. v. Mugavero, supra, 161).

In Slayko v. Security Mutual Ins. Co., supra, the Court of Appeals found that a person’s act of pointing a gun at another and pulling the trigger was not inherently harmful for the purpose of an intentional act exclusion because the undisputed facts established that the two parties were friends and that the shooter believed that the gun was not loaded. In this action for a declaratory judgment, the uncontested submissions establish that Young and Wood did not know each other; that they had never met before the incident; and that Young did not know that Wood was in the camping tent. However, Young’s conduct clearly rises to the level of depraved indifference reckless conduct i.e. driving into a tent at 6:15 in the morning when camping tents are normally occupied.

Under the current state of the law, an injury is “inherent in the nature” of an act when the act is so exceptional that “cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm” (Progressive Northern Ins. Co. v. Rafferty, supra; quoting

Allstate Ins. Co. v. Mugavero, supra, 160-161). This Court holds and determines that running over a tent with an automobile does not necessarily cause harm to another person. The intentional act of running over a camping tent can be separated from the injury since the tent could have been unoccupied, or the automobile could have run over a portion of the tent without striking someone inside. Young clearly committed an act of depraved indifference recklessness, but he did not intend to injure Wood.

In Progressive Northern Ins. Co. v. Rafferty, supra, an intentional acts exclusion applied because an individual stepped on the accelerator of his vehicle and injured a person standing two feet in front of him with whom he had been arguing. In Smith v. New York Central Mut. Ins. Co., 13 AD3d 686 [3rd Dept. 2004], the intentional act exclusion applied despite a plea to a crime involving criminal negligence where an individual pursued another individual and struck him in the head with a bat. The facts of the instant action wherein Young did not even know Wood or intend to cause any injury to Wood are clearly distinguishable from these cases.

Accordingly, this Court hereby declares that Progressive’s intentional act exclusion does not apply and that Progressive must defend and provide insurance coverage for Young. For similar reasons, the incident should be and the same is hereby considered an “accident” under the definitions of Young’s insurance policy. This Court holds and determines that a hearing is not necessary to make this determination.

For public policy reasons, this Court does not necessarily embrace the concept of providing liability insurance coverage on behalf of an individual who has clearly committed a criminal act of depraved indifference recklessness. However, the criminal law does establish a clear difference between intentional conduct and depraved indifference reckless conduct although equal in blameworthiness. In fact, “intentional” and “depraved indifference recklessness” are inconsistent culpable mental states because guilt of one necessarily negates guilt of the other (see, CPL § 330.30(5); see also, People v. Payne, 3 NY3d 266 [2005]). Also, Young was clearly intoxicated at the time of the incident, and voluntary intoxication may be a defense to intentional conduct (see, PL § 15.25) but is not a defense to reckless conduct (see, PL § 15.03(3)). This Court should not expand Progressive’s policy exclusions to exclude depraved indifference reckless criminal acts, unless the policy expressly excludes such criminal acts. To do so would be to deny Wood, who was not intentionally injured by Young, the benefit of recovery under both Young’s liability automobile [*5]insurance coverage, and Young’s no-fault automobile insurance coverage.

This Court holds and determines that New York Central’s action for a declaratory judgment declaring that Progressive has an obligation to defend and provide insurance coverage to defendant Young should be and the same is hereby granted with $100.00 costs. This Court further holds and determines that Progressive’s cross motion for a judgment declaring that Progressive has no obligation to defend or provide coverage to defendant Young should be and the same is hereby denied without costs.

This Memorandum shall constitute both the Decision and Order of the Court. All papers, including this DECISION/ORDER, are being returned to the plaintiff’s attorney. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR § 2220. Legal counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

IT IS ADJUDGED and declared that defendant Progressive must defend and provide liability insurance coverage to defendant Young, and must also provide no-fault insurance coverage for Wood.

Dated: Schoharie, New York

January 27, 2006

ENTER

_______________________________________

DAN LAMONT, Acting J.S.C.

cc: Jeffrey D. Wait, Esq.

John R. Seebold, Esq.

Mark O. Chieco, Esq.

Charles Young

Papers considered:

1) Plaintiff’s Notice of Motion dated October 5, 2005.

2) Affidavit of Jeffrey D. Wait, Esq. sworn to October 5, 2005, with exhibits.

3) Plaintiff’s Memorandum of Law dated October 5, 2005.

4) John R. Seebold, Esq.’s letter dated October 6, 2005.

5) Defendant Progressive’s Notice of Cross Motion dated October 25, 2005.

6) Affidavit of Mark O. Chieco, Esq. sworn to October 27, 2005, with exhibit.

7) Affidavit of Gerald Hmura sworn to October 26, 2005, with exhibit.

8) John R. Seebold, Esq.’s letter dated November 10, 2005.