Opinion
2011/4308
12-21-2011
In the Matter of the Application of Geico General Insurance Company, Petitioner, For Judgment Permanently Staying the the Arbitration Commenced by CYD M. CRUZ, v. A. Central Insurance Company, Respondents.
APPEARANCES:DANIEL R. ARCHILLA, ESQ., for Petitioner PAUL J. CALLAHAN , ESQ., for Respondent A. CentralInsurance Company
APPEARANCES:DANIEL R. ARCHILLA, ESQ., for Petitioner
PAUL J. CALLAHAN , ESQ., for Respondent A. CentralInsurance Company
Patrick H. NeMoyer, J.
PAPERS CONSIDERED:The NOTICE OF PETITION TO STAY ARBITRATION and thePETITION TO STAY ARBITRATION, with annexed exhibits;
the opposing AFFIDAVIT of Kevin A. Lane, Esq. with annexedexhibits;
The copy of the A. Central policy annexed to the Lane affidavit omitted every other page, so the Court has accepted in its place the complete copy of the policy handed up at the time of oral argument.
the AFFIDAVIT of Lawrence Bates, Jr., with annexed exhibits;
the AFFIDAVIT of Anna E. Nelson, with annexed exhibits;
the AFFIDAVIT of Donald Kaczmarek;
the MEMORANDUM OF LAW IN OPPOSITION TO GEICO'sAPPLICATION TO STAY ARBITRATION;
December 1, 2011 letter of Kevin A. Lane, Esq.; and the copy of the GEICO policy furnished to the Court following oralargument.
Respondent A. Central objects to the Court's consideration of the GEICO policy, but it was furnished to the Court at the Court's specific request. Moreover, its consideration is critical to the issue of the arbitrability of the UM dispute, and A. Central can demonstrate no prejudice as a result of the Court's consideration of such policy.
This proceeding arises out of a two-car, rear-end accident that occurred on January 1, 2011 on Pearl Street in the City of Buffalo. One of the drivers, respondent Cyd M. Cruz, alleges that she sustained serious injuries as a result of the accident and more particularly as a result of the negligence of the other driver (also referred to herein as the tortfeasor), who has never been identified except by his first name "Christopher." The tortfeasor's vehicle (also referred to herein as the offending vehicle) was owned by Tanysha Rosado and was insured by respondent A. Central Insurance Co. (A. Central). The accident was a hit-and-run accident, albeit one in which the license plate fell off the offending vehicle, thus enabling authorities to determine Rosado's ownership of it.
The Cruz vehicle was insured by petitioner GEICO General Insurance Co (GEICO) under a policy that provides the mandatory $25,000/50,000 uninsured motorist (UM) coverage. The GEICO policy thus covers Cruz in the event that she sustains bodily injury as a result of the negligent operation of an uninsured motor vehicle, defined to include, inter alia, a vehicle to which no bodily injury liability insurance policy or bond applied at the time of the accident, or a vehicle to which such policy or bond applied at the time of the accident but as to which the insurer subsequently denied coverage. The GEICO policy provides for arbitration of any UM claim by Cruz at her option, particularly with regard to Cruz's legal entitlement to recover damages (i.e., whether she sustained a serious injury as a result of the negligent operation of the offending motor vehicle) and as to the total damages recoverable by Cruz. However, the UM provision bars arbitration of disputes concerning coverage under the UM provisions of the GEICO policy. The policy provides that, upon paying out on any UM claim, GEICO will be entitled to the assignment of any claim of Cruz and may seek subrogation from the tortfeasor.
The A. Central policy, which sets forth limits of liability of $25,000/50,000, contains typical provisions imposing upon its named insured, Rosado, the duty to "promptly" notify A. Central of "how, when and where the accident or loss happened," including "the names and addresses of any injured persons and of any witnesses" to the accident, as well as the duty to cooperate with A. Central in its investigation, defense, or settlement of any claim or suit. The policy provides that A. Central has no obligation to cover Rosado under the policy absent her compliance with those duties.
Following the accident, Rosado did not report it to A. Central. The accident was, however, reported to A. Central by Cruz on January 3. Thereafter, on January 7 and 10, a representative of A. Central succeeded in contacting Rosado by phone. During the first conversation, Rosado denied her car's involvement in any accident. After being told that her license plate had been found at the accident scene, however, Rosado claimed that her vehicle was being operated by another. Nevertheless, Rosado refused to provide the operator's name or other contact information (which she never claimed not to know), despite relating an account that tended to exculpate the operator. In the second conversation, Rosado identified the operator only as a "Christopher" but again failed to provide better contact information, despite saying that she soon would be meeting with "Christopher" and an investigating police officer. She pledged to return certain accident report forms to A. Central after such meeting.
All dates are from 2011.
On January 3, in the meantime, A. Central had mailed an initial batch of accident report forms for Rosado to complete and return to the insurer, which she never did.
On January 14 and 18, additional attempts to contact Rosado by telephone were unsuccessful, and she did not return the telephone messages left for her, which were to the effect that the carrier wanted to speak with her and needed for her to return the completed forms.
On January 18 or 19, a second batch of forms was sent to Rosado via first class and certified mail, together with a cover letter advising Rosado of her need to cooperate, lest she lose coverage under the policy. On February 14, the material sent certified was returned as "unclaimed." (A like letter and a third batch of forms apparently was sent to Rosado via her insurance agent, likewise by both first class and certified mail, but that mailing did not obtain the desired results either.)
On February 24, A. Central retained a field adjuster, Don Kaczmarek, to contact Rosado and obtain the required information. On March 7, Kaczmarek advised A. Central that, between February 24 and March 7, Kaczmarek had made multiple calls to Rosado's telephone, which was being answered only by a woman who claimed not to speak English. When Kaczmarek would ask for Rosado, the woman would reply, "No." At least one such call had not been answered, but Kaczmarek left a message that likewise had gone unanswered. Kaczmarek further reported that, on March 1, he had sent Rosado a letter, but that had not been answered either.
On March 24, Kaczmarek made a similar report to A. Central, this time advising that he had sent a certified letter to the insured and was awaiting the return of the certified mail receipt before attempting "any cold calls." On April 11, 2011, Kaczmarek advised A. Central that his "cold call" was not successful and that Rosado had not responded to his letter, his repeated telephone calls to her, or a note that he had left on her door.
On May 5, A. Central sent a letter to Rosado, via first class and certified mail, advising her of her need cooperate and of the consequences of her not cooperating. No response or cooperation was forthcoming, and the certified letter was returned to A. Central as "unclaimed" about four weeks later.
On June 7, a claims adjuster for A. Central telephoned and left messages for Rosado at both numbers that the insurer had on file for her; there was no response to either message.
On June 10, A. Central sent a second warning letter, again by first class and certified mail, notifying Rosado of her need to cooperate. That second warning letter gave a firm date, June 24, by which Rosado was to contact the insurer or lose her coverage. Five days later, A. Central received a certified mail return receipt indicating that the June 10 letter had been signed for on June 13 by someone at Rosado's address (but apparently not by Rosado herself). Again, no response or cooperation was forthcoming.
On July 22, A. Central formally disclaimed coverage for Rosado's lack of cooperation. A certified letter to that effect was returned unclaimed. Both Cruz and her attorney were copied on the disclaimer letter.
None of the first class mailings, in contrast, was returned.
On October 13, Cruz served a demand for arbitration upon GEICO pursuant to the UM endorsement of her policy.
On October 28, GEICO filed the instant application for a permanent stay of arbitration, naming both Cruz and A. Central as respondents. As the sole ground for that relief, GEICO alleges that A. Central improperly disclaimed coverage for Rosado's failure to cooperate, and that there thus exists insurance on the offending vehicle. GEICO asserts that, before improperly disclaiming, A. Central had "already spoken to [its] insured and obtain[ed] the name of the driver involved in the accident," and further had learned the names of witnesses to the accident from the police report.
As alternative relief, GEICO seeks a temporary stay of arbitration to allow it to conduct discovery into a circumstances of the accident and the nature and extent of Cruz's injuries.
Of the two respondents, only A. Central opposes the application to stay arbitration of the UM claim, arguing that its disclaimer of coverage for lack of cooperation by Rosado was valid and that GEICO cannot sustain its burden of demonstrating otherwise. Cruz has not appeared in opposition to the petition, and counsel for the two insurers advise this Court that, given the $25,000 limits of coverage available from either insurer, Cruz will be happy if this Court either invalidates the disclaimer of coverage by A. Central or permits Cruz to proceed to arbitration against GEICO. The Court has not been advised, however, as to whether Cruz has commenced a tort action against Rosado and "Christopher," nor whether, if such an action was commenced, it has proceeded to a judgment, default or otherwise, against Rosado and/or "Christopher."
Before addressing the validity-of-disclaimer/non-cooperation issue framed for it by the insurers, the Court has thoughts to impart concerning the appropriateness of an insurer's application to stay arbitration of a UM claim made against it on the ground of the invalidity (or untimeliness) of the tortfeasor's insurer's disclaimer of coverage. Numerous appellate cases, chiefly if not entirely out of the Second Department, endorse the procedure (see e.g. Matter of Victoria Select Ins. Co. v Munar, 80 AD3d 707, 707-708 [2d Dept 2011]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 656 [2d Dept 2007]; Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629, 630 [2d Dept 2004]; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496, 497-498 [2d Dept 2003]; see also Matter of New York Cent. Mut. Fire Ins. Co., 76 AD3d 1078, 1078-1079 [2d Dept 2010]; see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 863 [1979]). This Court is of course obligated to apply the aforementioned appellate authority absent a contrary decision of the Court of Appeals or a split among the Appellate Divisions (see People v Turner, 5 NY3d 476, 482 [2005]; Tzolis v Wolff, 39 AD3d 138, 142 [1st Dept 2007]; Mountainview Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]; see also Stewart v Volkswagen of Am., 181 AD2d 4, 7 [2d Dept 1992], revd on other grds 81 NY2d 203 [1993]). In so following such decisions, however, this Court must note that it has serious doubts as to the procedural and substantive sense of allowing a UM insurer in this context to challenge another insurer's disclaimer of coverage under a policy different from the one under which the arbitration is being sought. At bottom, this Court cannot understand why, upon being served with a demand for arbitration initiating a claim for certain substantive relief by party A pursuant to a contract between party A and B, party B should be permitted to seek unrelated determinations or relief (see infra) against party C, a stranger to both the A/B contract and to any substantive claim and arbitration request that might arise thereunder.
The Court perceives that the issue that GEICO raises as its sole ground for a permanent stay of arbitration is not one that may be raised on an application to stay arbitration. According to CPLR 7503 (b) the sole grounds for seeking a stay of arbitration are that "a valid agreement [to arbitrate] was not made or has not been complied with or that the claim sought to be arbitrated is barred by limitation under subdivision (b) of section 7502" (see also CPLR 7503 [c]). GEICO has not raised any of the foregoing issues, and the issue that GEICO places before the Court — whether A. Central validly disclaimed coverage to Rosado — fails to relate in any way to the statutorily enumerated grounds for staying arbitration.
Further, this Court cannot see that the issue that GEICO would have this Court decide — the validity of A. Central's disclaimer under a different policy — has anything at all to do with whether Cruz possesses or lacks a present statutory and contractual right to arbitrate and recover on her UM claim against GEICO. The governing statute (see Insurance Law § 3420 [f] [1]), the regulations promulgated thereunder (see 11 NYCRR 60-2.3 [c] [3] [iii], [f]), and the pertinent insurance policy explicitly give Cruz the right to seek and prevail at arbitration of a UM claim against GEICO where she sustained a serious injury as a result of the negligent operation of a vehicle 1) as to which there was liability coverage on the date of the accident but 2) as to which the tortfeasor's liability carrier subsequently denied or disclaimed coverage. Neither the statute/regulation nor the insurance policy makes any reference to the validity or invalidity of any such disclaimer or denial of coverage, its timeliness or untimeliness, or any other such factor as a basis for either the denial of access to the arbitration forum or for the rejection of the UM claim as a substantive matter. Moreover, even if A. Central's disclaimer of coverage is to be deemed invalid, that invalidity would not alter the fact that the tortfeasor's vehicle was in fact covered by insurance on the date of the accident and that such coverage was subsequently disclaimed. Those two circumstances, in conjunction, provide all necessary and sufficient support for Cruz's demand for arbitration against GEICO. Thus, in seeking to stay arbitration on the ground that A. Central's disclaimer of coverage was invalid, GEICO raises an issue not at all logically responsive — and thus completely immaterial — to Cruz's demand for arbitration and to her substantive right to UM coverage. By what logic, then, does the alleged invalidity of the other insurer's disclaimer become a ground for a permanent stay of arbitration and for the rejection of Cruz's UM claim against GEICO?
At oral argument, counsel for both insurers sought to analogize this situation to stay-of-arbitration proceedings brought in connection with UM claims made on the basis that the offending vehicle lacked insurance on the date of the accident. It was pointed out to this Court that, in such cases, the UM insurer may challenge the validity of the cancellation of the offending vehicle's coverage prior to the accident (see e.g. Matter of Global Liberty Ins. Co. of NY v Pelaez, 84 AD3d 803 [2d Dept 2011]; Government Empls. Ins. Co. v O'Neil, 74 AD3d 1068 [2d Dept 2010]). However, such cases are clearly distinguishable from this case. In the foregoing scenario, the invalidity of the cancellation of coverage before the accident goes directly to the question of whether the offending vehicle lacked insurance coverage on the date of the accident, the very circumstance asserted as the basis for the UM claim. Here, in contrast, and as noted supra, the invalidity of the disclaimer of coverage after the accident has no tendency to refute the bases on which the UM arbitration is being sought, i.e., 1) that the offending vehicle had insurance coverage on the date of the accident but 2) that the insurer since has disclaimed coverage (whether validly or not).
Counsel for both insurers advised this Court at oral argument that allowing GEICO and A. Central to litigate here and now over the validity of A. Central's disclaimer of coverage will help the insurers avoid a needless circuity of action. Counsel for both insurers thus urge that, if this Court does not address the validity of A. Central's disclaimer of coverage in this procedural context, and if it does not stay arbitration on that basis, then GEICO must 1) await the adverse outcome of the arbitration before 2) recovering on its subrogation claim against the tortfeasor and then 3) suing to enforce any judgment directly against A. Central (only then and thereby litigating the validity of the disclaimer). However, the insurers ignore several other potential scenarios, among them that Cruz as the UM claimant may not prevail in the arbitration or that GEICO may not prevail on its subrogation claim against the tortfeasor, thus eliminating the need for any court ever to entertain an inter-insurer action or dispute or otherwise address the validity of the A. Central disclaimer.
Moreover, counsel for the insurers ignore the fact that, even if this Court determines here and now that A. Central's disclaimer was valid, such determination would not bind either Rosado or the tortfeasor, neither of whom has been made a party herein and either or both of whom could yet bring a declaratory judgment action against A. Central in an effort to enforce coverage under the A. Central policy. The Court will yield to the dictates of the appellate courts, but the Court really has no interest and sees little purpose in rendering such a purely advisory opinion, one in which a current determination in favor of A. Central (besides being of no logical assistance to petitioner under the contract or the controlling statute/regulation, and besides being a matter of no apparent interest to the co-respondent Cruz) will be of no binding effect even upon those parties most interested in and affected by the disclaimer, i.e., A. Central's insureds. In that regard (and completely apart from the attendant risk of ultimately inconsistent determinations created by the insurers' approach to this matter), it appears that mistreating the instant arbitrability dispute as the occasion for adjudicating the validity-of-disclaimer issue might not in fact serve the interests of judicial economy now being urged upon the Court by counsel for the insurers.
It is for that reason that some of the appellate decisions direct the lower court to order the tortfeasor and the offending vehicle owner joined to the proceeding to stay arbitration (see e.g. Victoria Select Ins. Co., 80 AD3d at 708), thereby further delaying and complicating what ought to be a straightforward proceeding to stay arbitration. For reasons made even more clear by the result reached infra, the Court sees no necessity or advantage here in ordering the joinder of the tortfeasor (whom no present party can identify and no prospective party evidently is willing to identify) or the owner of the offending vehicle (whom A. Central has spent literally months unsuccessfully trying to contact and prod into action).
By the same token, the Court fears that even a determination in favor of GEICO, one staying arbitration on the ground asserted by it, will prove to be undesirably advisory and thus will do little to bring either insurer any closer to a final resolution of their current or potential coverage disputes with their respective insureds. Such a determination will be binding on A. Central, but will declare only the invalidity of its July 2011 disclaimer. The Court can easily envision a scenario in which Rosado, having failed to cooperate with A. Central thus far in the investigation and defense of the claim, will continue to fail to cooperate with her insurer (at least in the insurer's eyes) in the future, i.e., even after the Court invalidates the last A. Central disclaimer and thereby reinstitutes the coverage in question. In that event, will not A. Central predictably again disclaim coverage of Rosado, in accordance with its rights under the insurance policy, and will not then Cruz predictably again seek arbitration from GEICO, in accordance with her statutory/regulatory and contractual rights to UM coverage?. Will not GEICO in that event again seek to stay arbitration by challenging the validity of A. Central's most recent disclaimer? If so, then how many times will the scenario have to be repeated before Cruz may finally realize her right to arbitrate her UM claim against GEICO? Will Cruz ultimately encounter contractual or statutory limitations problems as a result of the pointless prolongation of the matter?
For all of the foregoing reasons, this Court believes it inappropriate to permit two insurers to use a proceeding to stay arbitration as either a "poor man's" declaratory judgment action or as a substitute for an enforcement-of-judgment-against-insurer suit pursuant to Insurance Law § 3420 (a) (2) and (b) (3). In that latter regard, the Court notes that permitting the two insurers to battle out their issues as part of this application to stay arbitration of the UM claim seems to run afoul of explicit limitations on standing set forth in Insurance Law § 3420 (a) (2) (see also section3420 [b] [1]-[3]). That statute precludes an injured party or his subrogated insurer from proceeding against the tortfeasor's insurer unless and until a judgment has been obtained against the tortfeasor and remains unsatisfied for a specified time. Here, A. Central purports to waive any issue with regard to GEICO's "standing" to sue A. Central in this context, but the Court here is far less concerned with any putative waiver of rights by the tortfeasor's insurer, a stranger to the arbitration agreement and dispute, than it is concerned with the obvious prejudice that might be sustained by the UM claimant, a party to the arbitration agreement, in relation to her unqualified statutory/regulatory and contractual rights to proceed directly to arbitration against her own UM insurer under specified circumstances. Here, to put the matter in simplest terms, the supposed needs or evident desires of the two insurers for a current resolution of their (potential) loss-shifting dispute should not trump the (immediate and unequivocal) arbitration rights of Cruz as GEICO's insured.
Nonetheless addressing the issue framed by the parties, it is well established that for the protection of innocent injured parties, a "very heavy burden" is imposed upon a disclaiming insurer (Mount Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419, 420-421 [1st Dept 1995], lv denied 86 NY2d 707 [1995]; New York Cent. Mut. Fire Ins. Co., 11 AD3d at 316). An insurer that seeks to disclaim coverage based upon the insured's lack of cooperation must demonstrate 1) that it acted diligently in seeking to bring about the insured's cooperation; 2) that its efforts were reasonably calculated to obtain the insured's cooperation; and 3) that the attitude of the insurer was one of "willful and avowed obstruction" (Thrasher v Untied States Liab. Ins. Co., 19 NY2d 159, 168 [1967]; see Alexander v. Stone, 45 AD2d 216, 220 [4th Dept 1974]; see also Matter of New York Cent. Mut. Fire Ins. Co. [Salomon], 11 AD3d 315, 316 [1st Dept 2004]). "The insured need not have openly avowed' the intent to obstruct the insurer; however, the showing must support the inference that the insured's failure to cooperate was deliberate (Mt. Vernon Fire Ins. Co., [212 AD2d] at 420)" (New York Cent. Mut. Fire Ins. Co., 11 AD3d at 316). Although it has been held that "[m]ere inaction by the insured is not enough" to establish non-cooperation (see e.g. New York Cent. Mut. Fire Ins. Co., 11 AD3d at 316, the case usually cited for that proposition does not stand for it (see Matter of Empire Mut. Ins. Co. [Stroud—Boston Old Colony Ins. Co.], 36 NY2d 719, 721-722 [1975]). Rather, the Empire Mut. Ins. Co. decision stands for the proposition that non-action by the insured can evince a lack of cooperation provided only that the inference of non-cooperation is "practically compelling" (id. at 722).
Here, A. Central has sustained its heavy burden of showing a lack of cooperation by its insured, thus justifying the disclaimer of coverage. This is a case in which Rosado as the insured failed to report the accident to her insurer, A. Central. Nonetheless, A. Central acquired notice of the accident by other means and thus immediately contacted Rosado twice by telephone within the next week. During the first conversation, Rosado initially denied her car's involvement in any accident. Only after being told that her license plate had been found at the scene did Rosado relate that her vehicle was being operated by another whom she refused to identify. In the second conversation, Rosado identified the operator only by his first name but again would not provide additional information, despite saying that she soon would be meeting with the operator and an investigating police officer and would return accident report forms to A. Central after the meeting. Subsequently, A. Central was totally unable to reestablish contact with Rosado despite numerous attempts by telephone, mail, and even a visit to her door. Such efforts were made over a period of four to five months.
With respect to the mailings, at least two sets of accident report forms were sent to Rosado by both regular and certified mail. Despite Rosado's previous pledge to complete the forms and return them, she never did. The regular mailings of the forms were not returned as undeliverable, but the certified mailings were returned as unclaimed. A third certified mailing by the retained field adjustor was likewise not responded to by Rosado, although it is not clear to the Court whether that certified mailing likewise was returned unclaimed. Thereafter, two warning letters were sent to Rosado by regular and certified mail; Rosado responded to neither. Both such mailings were made by regular and certified mail. Again, neither of the regular mailings was returned as undeliverable. One of the certified mailings was returned as unclaimed, but the other was signed for by someone at Rosado's address.
With regard to the attempts to contact Rosado by telephone, the record demonstrates that a number of calls were completed to someone at Rosado's residence, but that the person claimed not to speak English. Numerous other telephone calls culminated in messages left on Rosado's answering machine. In no instance was any such call or message returned. The telephone messages, like the warning letters, were to the effect that Rosado needed to cooperate with the insurer by contacting it and completing and returning the accident report forms. Finally, the field adjuster made one or more "cold calls" upon Rosado at her house. Those too were unsuccessful in procuring Rosado's cooperation or assistance, despite the field adjustor's action in leaving a note on Rosado's door on at least one such occasion.
By the foregoing proof, A. Central has demonstrated that it acted diligently in seeking to bring about the insured's cooperation, that its efforts were reasonably calculated to obtain the insured's cooperation, and that the attitude of the insured, both during her conversations with A. Central representatives and especially thereafter, was one of willful and avowed obstruction. A. Central's showing on those elements is countered by nothing of evidentiary or argumentative value adduced by GEICO. Although GEICO asserts that, before disclaiming, A. Central had "already spoken to [its] insured and obtain[ed] the name of the driver involved in the accident," GEICO ignores that only the tortfeasor's first name had been obtained, information of no use to A. Central in attempting to locate the tortfeasor. Although GEICO further asserts that A. Central had learned the names of eyewitnesses to the accident from the police report, those witnesses were not likely to know the tortfeasor's name or whereabouts either. Anyway, those considerations have nothing to do with the overriding issue of the non-cooperation of Rosado as A. Central's named insured. Therefore, as a matter of law, the disclaimer of coverage by A. Central was valid (see Matter of State Farm Indem. Co. [Moore], 58 AD3d 429, 430-431 [1st Dept 2009]; Continental Cas. Co. v Stradford, 46 AD3d 598, 599-600 [2d Dept 2007], mod on other grds 11 NY3d 443 [2008]; Utica First Ins. Co. v Arken, Inc., 18 AD3d 644, 645 [2d Dept 2005]).
Accordingly, the application of GEICO for a permanent stay of arbitration is DENIED. However, the alternative request of GEICO for a temporary stay of arbitration, in order to enable it to engage in pre-arbitration disclosure, is GRANTED.
SO ORDERED:
Hon. Patrick H. NeMoyer, J.S.C.