659 N.Y.S.2d 646 | N.Y. App. Div. | 1997
Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Robert Menz died on January 18, 1994 allegedly from injuries he sustained when the 1977 Buick automobile he was driving was struck head-on by a vehicle owned by Dorothy Batterson and driven by Ian H. Batterson, who also died. The vehicle operated by Menz was insured by defendant Nationwide Mutual Insurance Company (Nationwide). Nationwide was notified of the accident on January 18, 1994 and commenced an investigation. During an interview with the insured, Susan A. McClurg, on January 24, 1994, Mc-Clurg informed a Nationwide representative that she did not own the 1977 Buick automobile and was not the principal driver of that vehicle. She stated that Menz was the owner and principal driver and that she had procured insurance coverage for the vehicle because it would have cost too much for Menz
We agree with Nationwide that, in the circumstances of this case, material misrepresentations concerning ownership and the identity of the principal operator of the subject vehicle made while applying for insurance coverage, if proven, would void the automobile insurance policy ab initio (see, Sun Ins. Co. v Hercules Sec. Unlimited, 195 AD2d 24, 30; Travelers Indem. Co. v Avelino, 191 AD2d 229). Further, if the policy is void ab initio, the insured who is a claimant cannot create coverage that would not otherwise exist by relying upon the failure to provide timely notice of disclaimer (see, Morris v Merchants Mut. Ins. Co., 229 AD2d 992). Supreme Court properly determined that factual issues exist whether Menz or McClurg, in seeking to obtain insurance coverage, made material misrepresentations. Thus, to the extent plaintiff sought a declaration that Nationwide is obligated to provide coverage for her claim for uninsurance or underinsurance benefits, the court properly denied the motion for summary judgment.
However, we modify the judgment to grant that portion of the motion seeking a declaration that Nationwide is obligated to provide a defense in the Rockell action. The common-law right to void a policy ab initio for fraud or misrepresentation does not apply because "it is [not] alleged that the [Rockells themselves] participated in the fraudulent issuance of the policy” (Travelers Indem. Co. v Avelino, supra, at 229-230). Requiring Nationwide to provide a defense to plaintiff would