77 A.D.2d 421 | N.Y. App. Div. | 1980
OPINION OF THE COURT
At issue are the validity and enforceability of a provision
Chinetti, an automobile dealer in the business of selling foreign cars, with its principal place of business in Greenwich, Connecticut and an office in New York, was insured by Employers Mutual under a combination casualty policy issued in Connecticut for a one-year term commencing June 14, 1975. The policy included garage liability insurance which provided bodily injury liability coverage for Chinetti-owned automobiles with limits of $500,000 each person and $1,000,000 each occurrence.
Employers had certified to the State of Connecticut that its policy on Chinetti’s dealer-owned automobiles was issued in conformity with the laws of Connecticut, and 16 months before the policy’s issuance the New York State Department of Insurance had also approved Employers garage liability form. The policy also contained a New York State mandatory personal injury protection indorsement providing for the payment of first-party benefits.
On January 25, 1974, American Home had issued an umbrella liability policy to Chinetti for a three-year term commencing January 27, 1974, with a $1,000,000 limit on any one occurrence for personal injury liability in excess of Employers underlying garage liability coverage of $500,-000/$l,000,000 or in excess of $10,000 with respect to each occurrence not covered by Employers underlying insurance.
On October 30, 1975, within the term of each of these policies, a Chinetti-owned Ferrari, registered in Connecticut, was involved in an accident in Nassau County, New York, on a public road which the police had closed to traffic.
At the time of the accident the Ferrari was being operated by Lawrence Gotch, a Chance employee, who was insured under an automobile liability policy issued by Allstate Insurance Company which provided bodily injury limits of $100,000/$300,000, and included coverage for accidents involving a nonowned vehicle. In addition, both Chance and Revlon, which with Gotch are defendants in the Suarez action, were covered by an automobile liability insurance policy at the time of the accident.
Employers disclaimed coverage, citing exclusion (e) (2) (ii) of the garage liability section which provides that the policy does not apply “to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any * * * automobile * * * while rented to others by the named insured unless to a salesman for use principally in the business of the named insured”. (Emphasis added.) Thereafter American brought this action, initially only against Employers, but to which, pursuant to prior order of this court (American Home Assur. Co. v Employers Mut. of Warsaw, 64 AD2d 563), the Suarezes and Chinetti have been made parties,
At least until 1954 the traditional New York conflict of laws rule in contractual matters had been that “ ‘All matters bearing upon the execution, the interpretation and the validity of contracts * * * [were] determined by the law of the place where the contract [was] made’ ”, as distinguished from matters relating to their performance, which were “ ‘regulated by the law of the place where the contract, by its terms, [was] to be performed.’ ” (Swift & Co. v Bankers Trust Co., 280 NY 135, 141; Union Nat. Bank of Chicago v Chapman, 169 NY 538, 543; see, also, Zwirn v Galento, 288 NY 428; United States Mtge. & Trust Co. v Ruggles, 258 NY 32, 38.)
In Auten v Auten (308 NY 155), decided in 1954, the Court of Appeals, relying, in part, upon its earlier decision in Rubin v Irving Trust Co. (305 NY 288, 305), applied the more flexible “center of gravity” or “grouping of contacts”
The Auten “center of gravity” or “grouping of contacts” rule continues to be the test in contract actions (see, e.g., International Planning v Daystrom, Inc., 24 NY2d 372) and has also been applied in tort actions (see Babcock v Jackson, 12 NY2d 473). But even while adhering to the view that the traditional conflict of laws rule should “no longer be slavishly followed”, the Court of Appeals has held that the place where the contract was made is still “a significant contact in applying the center of gravity rule”. (Matter of Havemeyer, 17 NY2d 216, 221.)
Employers’ Liab. Assur. Corp. v Aresty (11 AD2d 331, affd 11 NY2d 696), decided by this court after Auten (supra), presents a striking parallel to the case at bar. An automobile liability insurance policy had been issued in New York without the specific provision required to cover an insured’s liability to his spouse for death or personal injuries (see Insurance Law, § 167, subd 3). After the policy became effective, the insured moved to Connecticut, thus prompting the issuance in New York of a change-of-address indorsement and a refund of a portion of the premium. Thereafter, the automobile covered by the policy was involved in an accident in Connecticut, and as a result the insured’s wife commenced a personal injury action against him. The insurer sought a declaration that it was not obligated to defend or to pay any judgment which might be entered against the insured as a result of such a lawsuit. Rejecting the argument that the issuance of the indorse
In Mindell v Travelers Ind. Co. (46 AD2d 263, affd 38 NY2d 815), the Fourth Department found that a New York resident injured in Canada but suing in New York could not benefit from the minimum bodily injury coverage requirements ($35,000) of Canadian law, applicable both to resident and nonresident claimants alike, because the policy, as permitted by the law of New York, where the parties entered into the contract, had fixed a $10,000 limit of liability. The court held (pp 266, 267):
“ [i]t seems to us to be highly questionable whether a law of Ontario may be effective to alter rights and limitations created by a contract entered into in New York by a New York resident and a corporation authorized to do business here—especially when the statute is contrary to an express provision in the policy * * *
“No reason appearing why the Canadian law is entitled to be given effect to alter and override the insurance contract from which defendant’s liability derives, we conclude that the applicable limit of coverage should be $10,000, as stated in the policy.”
In Government Employees Ins. Co. v Sheerin (65 AD2d 10), the Second Department recently confirmed the vitality of the lex loci contractus doctrine. There, an insurer sought a declaration that it had validly canceled for nonpayment of premium an automobile liability policy written and de
In addition to those factors already mentioned as supportive of its finding that New York law applied, Trial Term relied upon the New York no-fault indorsement attached to the Employers policy as indicative of the parties’ intent that the policy provide coverage for any accident occurring within this State. It is apparent that the no-fault indorsement was included in the policy to reflect Chinetti’s maintenance of a New York City office and the parties’ recognition of the eventuality that, as a result, its automobiles would be operated in this State for either demonstration purposes or transfer to and from its Connecticut showroom. The indorsement simply cannot be construed as an indication that the parties intended that the rental exclusion was not to apply to a New York accident.
It is equally obvious that the parties contemplated and made specific provision for the out-of-State operation of Chinetti’s automobiles in jurisdictions whose minimum motor vehicle financial responsibility requirements might be greater than the coverage provided in the policy.
Under the law of Connecticut, where the contract was written, the rental exclusion is valid, inasmuch as it is expressly authorized by section 38-175a-5(c) [11] (B) (ii) of the Connecticut Insurance Department Regulations, effective February 1, 1975. On the other hand, a regulation of the Department of Insurance of the State of New York, applicable to all automobile liability policies issued pursuant to section 311 (subd 4, par [a]), of the Vehicle and Traffic Law, enumerates the exclusions which the superintendent has authorized, and the rental exclusion is not among those specified. (11 NYCRR 60.2.) Consequently, in the final analysis, we must decide whether the exclusion, valid in Connecticut, is enforceable in New York, the forum State.
Although found in a contract, the rental exclusion is effectively a creation of the State of Connecticut, which, in the exercise of its supervision of the insurance industry, has given its imprimatur to the use of such exclusion in policies issued subject to its jurisdicton. The courts of this State may not impair the obligation or provision of a contract into which the parties validly entered in a sister State under the applicable law of such State. (US Const, art I, § 10, cl 1; art IV, § 1.)
A foreign statute or regulation “is not law in this state,
Applying such a standard, we cannot find that Employers rental exclusion violates the public policy of this State, even though its use has not been sanctioned, at least as to any policy issued pursuant to the Motor Vehicle Financial Security Act (Vehicle and Traffic Law, art 6). That New York’s statutory or regulatory scheme is silent on the subject or even differs, is by itself, insufficient to demonstrate a public policy against the rental exclusion (see Loucks v Standard Oil Co. of N.Y., 224 NY 99, 110-111, supra), especially where, as here, the New York State Superintendent of Insurance has approved the form containing the exclusion.
Moreover, as stipulated by the parties, three other policies affording primary liability coverage for this accident were in effect,
Motor Vehicle Acc. Ind. Corp. v Continental Nat. Amer. Group Co. (35 NY2d 260), upon which Trial Term relied in reaching a contrary conclusion, did not involve a policy exclusion, but rather a restriction in a private rental agreement between the insured, a car rental agency, and its lessee. The agreement limited the operation of the vehicle to the lessee or an adult member of his immediate family and prohibited the lessee from surrendering use of the vehicle to any other person without first obtaining the lessor’s consent. At the time of the accident the vehicle was being operated by a nonauthorized user with the express permission of the lessee but without the consent of the lessor. The Court of Appeals held (p 264) that the insurer could not disclaim on the basis of the agreement since “[t]he restrictions sought to be imposed * * * violate the public policy of this State. A slight deviation from such a restrictive lease could render an injured victim devoid of adequate protection, which is contrary to the legislative intent envisaged by section 388 of the Vehicle and Traffic Law.” Because of the
Even if this record were to support a finding that Employers knew that Chinetti had rented the Ferrari, such knowledge would not affect the exclusion. Motor Vehicle Acc. Ind. Corp. (supra) is thus distinguished because there the lessor’s knowledge removed the restriction on use which was the basis of the insurer’s disclaimer. More significantly, Motor Vehicle Acc. Ind. Corp. did not involve a contract, the validity of which is determined by the law of a sister State.
Equally unavailing because the insurance contract was not written in another State whose law controls are Rosado v Eveready Ins. Co. (34 NY2d 43), upon which Special Term also relied, as well as Jamison v Walker (48 AD2d 320), and Allstate Ins. Co. v Dailey (47 AD2d 375), upon which American relies.
More to the point is Travelers Ind. Co. v Ryder Truck Rental (47 NY2d 139), in which the Court of Appeals upheld a rental agreement’s exclusion of a lessee’s liability for injuries to his guests, even though the rental occurred in New York where guest coverage is required (Vehicle and Traffic Law, § 311; 11 NYCRR 60.1). The accident had occurred in Maine and the vehicle had been registered and principally garaged in Massachusetts. Finding the vehicle’s presence in New York to be only temporary, the court held that this State’s guest coverage requirement was inapplicable since in enacting subdivision 2 of section 167 of the Insurance Law “the Legislature declared that only policies issued on vehicles principally garaged or used in this State would be subject to the mandatory insurance provisions.” (Travelers Ind. Co. v Ryder Truck Rental, supra, at p 142.)
Accordingly, the judgment, Supreme Court, New York County (Carro, J.), entered May 22, 1980, which, inter alia, declared that Employers policy covered the underlying Suarez’ negligence action to the full limits of its policy, should be reversed, on the law, with costs and disbursements, and judgment entered declaring that Employers
Murphy, P. J., Lupiano, Silverman and Yesawich, JJ., concur.
Judgment, Supreme Court, New York County, entered on May 22,1980, reversed, on the law, and judgment entered declaring that Employers rental exclusion is valid and enforceable with respect to the Suarez claims against Chinetti. Appellant shall recover of respondent one bill of $75 costs and disbursements of this appeal.
. Although not part of the agreed statement of facts, it is clear that an Employers underlying policy was in effect on January 25, 1974. Examination of the Employers policy in issue reveals that it was a renewal.
. Chinetti is in default. The Suarezes have appeared and answered. Although not a signatory to the stipulation of facts, their attorney represented to counsel for both insurers that he did not wish to participate in the proceedings before Trial Term.
. Suarez’ residence was not included within the agreed statement of facts. In any event his residency in New York, if that be the case, is not a determinative factor.
. The out-of-State insurance clause in Employers policy provided: “If, under the provisions of the motor vehicle financial responsibility law or the
. It should be noted, however, that this approval is not the sine qua non to our finding.
. One of these insurers has brought a declaratory action, the outcome of which, we are told, awaits the disposition of this appeal.
. Pursuant to an arbitration award Employers was held liable for the payment of first-party benefits to Suarez. At trial American contended that this award collaterally estopped Employers from disclaiming coverage. Trial' Term rejected this argument, rendering a specific declaration to that effect, in both its decision and the judgment entered thereon, because the arbitrator had “specifically found” that the rights and liabilities between Employers and its insured,