Soto v. State Farm Insurance

600 N.Y.S.2d 407 | N.Y. App. Div. | 1993

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint in this action alleging defendant’s bad faith in refusing to settle the underlying tort action within the policy limits. It is undisputed that plaintiffs have been paid the full amount of the compensatory damages awarded to them in the underlying tort action. They are not entitled, as assignees of the insured and the operator of the insured’s motor vehicle, to recover from defendant the unpaid punitive damages award assessed against the operator in the underlying tort action because " ([t]he record is devoid of any evidence that the insurer acted with malice or intent to harm the insured’ ” (DiBlasi v Aetna Life & Cas. Ins. Co., 147 AD2d 93, 100, quoting Kulak v Nationwide Mut. Ins. Co., 47 AD2d 418, 421, revd on other grounds 40 NY2d 140; see also, Reifenstein v Allstate Ins. Co., 92 AD2d 715, 716-717; Catalogue Serv. v Insurance Co., 74 AD2d 837, 838).

Furthermore, plaintiffs are not entitled to recover the unpaid punitive damages award because punitive damages are not insurable, and therefore could not have been within the contemplation of the parties at the time the contract for automobile liability insurance was made (see, Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400; see also, Kenford Co. v County of Erie, 73 NY2d 312, 319-322).

In view of our determination, we do not address the remaining contention advanced by defendant. (Appeal from Judgment of Supreme Court, Erie County, Gorski, J.—Dismiss Complaint.) Present—Denman, P. J., Balio, Lawton, Fallon and Davis, JJ.