188 A.D.2d 700 | N.Y. App. Div. | 1992
Lead Opinion
Appeal from an order of the Supreme Court (Ellison, J.), entered September 11, 1991 in Schuyler County, which granted defendants’ motion to dismiss the complaint on the ground of documentary evidence.
In this action, plaintiff seeks to recover insurance proceeds for a fire loss. The facts are simple and undisputed. In 1988 plaintiff and her husband, Joseph Fernandez, purchased a broad form homeowner’s insurance policy from defendant Cigna Property and Casualty Insurance Company (hereinafter Cigna) through its agent, defendant Lloyd D. Sprague & Sons, Inc. The policy covered their residence in the Town of Campbell, Steuben County. During the coverage period, the resi
Following the plea, and when her several demands for payment under the policy were unsuccessful, plaintiff commenced the instant action. Prior to joinder of issue, defendants moved to dismiss the complaint contending that Fernandez’s conviction (1) conclusively established that he, a household member or covered individual within the meaning of the policy, intentionally caused the loss thus triggering applicability of the intentional loss exclusion, and (2) conclusively established that he made misrepresentations in the proof of loss statement justifying denial of coverage under the fraud clause. Supreme Court, concluding that the proof submitted, namely the judgment of conviction, precluded recovery under the terms of the policy and that plaintiff could not recover as an innocent coinsured, granted defendants’ motion and issued an order dismissing the complaint "with prejudice and on the merits”. Plaintiff appeals.
We reverse. While the precise subparagraph of CPLR 3211 (a) relied upon by defendants in pursuing this motion or by Supreme Court in granting the requested relief is unclear, it appears from a reading of the court’s decision that its disposition was premised either upon the conclusion that Fernandez’s prior conviction operated to collaterally estop plaintiff from relitigating the issue of Fernandez’s culpability (CPLR
Nor do we believe that, under the circumstances, dismissal can properly be grounded upon the documentary evidence provision of CPLR 3211 (a) (1). To succeed on this basis, the documentary evidence that forms the basis of a defendant’s defense must be such that it resolves all the factual issues as a matter of law and conclusively and definitively disposes of the plaintiff’s claim (see, e.g., Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303, 305; Lake Placid Vil. v Lake Placid Main St. Corp., 90 AD2d 873). While a duly rendered judgment, standing alone, operates as persuasive or prima facie evidence of the facts which it adjudges or determines, it does not operate as conclusive evidence thereof unless the essential elements necessary to invoke the doctrine
However, while plaintiff is permitted an opportunity to contest Fernandez’s culpability, if it is ultimately determined that he was responsible, inasmuch as the express and unambiguous language of the policy precludes coverage under the intentional loss or fraud exclusions if plaintiff, another covered person (i.e., Fernandez) or a household member intentionally causes the loss or engages in fraudulent conduct with regard to a claim, plaintiff will not be able to recover under the policy, notwithstanding her status as an innocent coinsured (see, Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 257-259; cf., Amick v State Farm Fire & Cas. Co., 862 F2d 704).
Mercure, Casey and Harvey, JJ., concur.
North Carolina v Alford, 400 US 25; People v Serrano, 15 NY2d 304.
Concurrence Opinion
(concurring). The policy of fire insurance on which plaintiff sues was apparently issued jointly to her and her husband, Joseph Fernandez, who owned the covered property as tenants by the entirety. Moreover, as the quoted excerpts from the policy set forth in the majority’s decision show, either insured, by committing an act with intent to cause a loss or by making a fraudulent misrepresentation or concealment regarding a loss, had the power to forfeit the other insured’s right to recover the proceeds of the policy on a loss. Notably, plaintiff has sued to recover the full value of the entire alleged fire loss. These facts, in my view, distinguish the instant case from Samhammer v Home Mut. Ins. Co. (120 AD2d 59), relied upon by the majority for concluding that there was no privity between plaintiff and her husband (see also, Krupp v Aetna Life & Cas. Co., 103 AD2d 252).
I would find that privity does exist between plaintiff and her husband at least to the extent that, in the absence of a demonstrated conflict of interest between them, the disposition on the merits of a claim under the policy by one of them would preclude the assertion of the same claim in subsequent litigation by the other (i.e., claim preclusion or res judicata). Privity in this case would arise out of the fiduciary relationship as to the covered property existing between them as tenants by the entirety (see, Restatement [Second] of Judg
Plaintiff, however, is not necessarily bound by the prior determination of a factual issue (i.e., issue preclusion or collateral estoppel) against her husband in litigation unrelated to any claim under the contract of insurance (see, id., at § 53, comment b). It would be particularly inequitable to apply collateral estoppel against plaintiff here based upon her husband’s conviction on an arson-related offense as a result of an Alford-Serrano plea to a drastically reduced charge under a plea agreement providing for a sentence of probation (cf., Matter of Halyalkar v Board of Regents, 72 NY2d 261, 268-270). Consequently, I concur in the result.
Ordered that the order is reversed, on the law, with costs, and motion denied.