Lead Opinion
In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of an unsatisfied judgment against the defendant’s insured, the defendant appeals from an order of the Supreme Court, Nassau County (J. Murphy, J.), entered June 17, 2015, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.
On May 19, 2006, the plaintiff, Antonio Garcia, was injured when he was struck by a vehicle in a parking lot in Brooklyn. Garcia commenced an action against Jeanne Rakowski, who owned the vehicle, and Linda Danielson, who, with Rakowski’s permission, was driving it when it struck Garcia. In 2012, Garcia obtained a judgment against Rakowski and Danielson. After obtaining partial satisfaction of that judgment, Garcia sought to recover the unsatisfied portion of it from Government Employees Insurance Company (hereinafter GEICO). GEICO had issued a personal umbrella policy (hereinafter the umbrella policy) to Rakowski, and Garcia claimed that the umbrella policy was in effect when Rakowski’s vehicle struck him. After GEICO failed to satisfy the remainder of the judgment within 30 days of Garcia’s request, Garcia commenced this action against GEICO pursuant to Insurance Law § 3420 (a) (2). He alleged, in relevant part, that, at the time of the accident, Rakowski’s umbrella policy, in the amount of $1,000,000, was in effect. He also alleged that GEICO’s purported cancellation of that policy before the accident was “improper, invalid, and ineffective.”
GEICO moved for summary judgment dismissing the complaint on the ground that Rakowski’s umbrella policy was not in effect at the time of the accident. Specifically, GEICO contended that Rakowski’s umbrella policy, which contained a liability limit of $2,000,000 for the contracted policy period, had been cancelled for nonpayment of premium, effective at 12:01 a.m. on May 19, 2006, only a few hours before Rakowski’s vehicle struck Garcia.
In support of its motion, GEICO submitted evidence that in
Garcia opposed GEICO’s motion. He contended that there was an issue of fact as to whether Rakowski’s payment of $306 before the commencement of the policy period beginning October 10, 2005, secured a fully paid policy providing a full year of coverage for $1,000,000. Additionally, Garcia contended that GEICO had failed to establish, prima facie, that it had validly cancelled the policy, whatever the limit of coverage. The Supreme Court denied GEICO’s motion, holding that there was a triable issue of fact as to whether Rakowski’s umbrella policy was severable as to the limits of liability. GEICO appeals.
GEICO contends that, as a matter of law, Rakowski’s umbrella policy for the period commencing October 10, 2005, provided coverage of $2,000,000, and that Rakowski’s payment of only a portion of her premium for that policy resulted in
Resolution of disputes about insurance coverage begin with examination of the language of the policy (see Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d 675, 681 [2017]; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221 [2002]). Interpretation of unambiguous policy provisions, which must be given their plain and ordinary meaning, is a question of law (see Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d at 681-682; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]). Further, while ambiguities in an insurance contract are to be interpreted in favor of the insured (see Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 28 NY3d at 682; Matter of Viking Pump, Inc., 27 NY3d 244, 257 [2016]), ambiguities arise only where there is more than one reasonable interpretation of the policy, as measured by the reasonable expectations of the average insured. In other words, even where policy language is susceptible of more than one interpretation, there is no ambiguity if only one of them is reasonable (see Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642, 650 [2012]; Great Am. Restoration Servs., Inc. v Scottsdale Ins. Co., 78 AD3d 773, 776 [2010]; Antoine v City of New York, 56 AD3d 583, 584 [2008]).
More specifically, an insurance contract is divisible when the contracting parties intend that it be divisible (see First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d 297, 299 [1971]; Donley v Glens Falls Ins. Co., 184 NY 107, 111 [1906]). The parties’ intention is to be gleaned from the language of the contract and the application of the rules governing contractual interpretation (see First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d at 299). The general rule is that an insurance contract
The question of divisibility arises when, for example, a policy covers separate properties or separate risks, and the policyholder has breached a condition or warranty as to one property or one type of risk, but not involving the loss at issue. In the context of the insured’s nonpayment of a portion of the premium, the issue of divisibility arises when, for example, a policyholder has made a change to a fully paid policy but has not paid the additional premium occasioned by the change. Depending on the insurance contract at issue, the lines of divisibility may run between the types of risk covered by the contract, such as property damage as opposed to personal injury (see American Sur. Co. of N.Y. v Rosenthal, 206 Misc 485, 488 [Sup Ct, Nassau County 1954]), or between the different properties covered, such as where different vehicles or properties are covered by the policy (see Matter of Nationwide Mut. Ins. Co. [Mason—Lumbermens Mut. Cas. Co.], 37 AD2d 15, 18 [1971]; Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc 2d 1044 [Sup Ct, Nassau County 1985], affd 120 AD2d 597 [1986]; cf. First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d at 300). When, however, an insured has increased liability limits of an entire policy as of the inception date of coverage, but has not paid the full premium and the policy has thus lapsed, the Court of Appeals has held that the policy is not divisible to provide coverage in a lesser amount than stated in the policy, at least where no different type of risk had been added to the policy (see First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d at 299).
Here, there is no ambiguity in Rakowski’s umbrella policy as to either coverage or divisibility. Rakowski contracted, before the policy term began, for an umbrella policy covering specified risks, with a coverage limit of $2,000,000. The policy she received unambiguously provided for the amount of coverage she had requested with respect to risks she had specified: the Amended Declarations of the insurance contract, dated August 31, 2005, stated that, for the policy period, of October 10, 2005, to October 10, 2006, the risks pertained to the specified properties and vehicles, and the coverage limit pertaining to those risks was $2,000,000.
As Garcia points out, forfeiture is not favored in the law (see Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc 2d at 1047), and, where cancellation of an entire policy would result in forfeiture, courts may be reluctant to hold that an insurance contract is not divisible (see id.; see also Matter of Nationwide Mut. Ins. Co. [Mason—Lumbermens Mut. Cas. Co.], 37 AD2d at 20). There is, however, no forfeiture here. Rakowski asked for, and received, a $2,000,000 policy, and she had $2,000,000 in coverage from the outset of the policy period, October 10, 2005. Because she only paid part of the premium, her coverage was cancelled, upon notice, when the prorated premium for the coverage she contracted for was exhausted. In other words, Rakowski got everything she paid for, and she forfeited nothing. That Rakowski “just missed” being insured for the injuries caused to Garcia is unfortunate, but nonetheless irrevelant to this analysis. GEICO sent its cancellation notice more than six months before Rakowski’s vehicle struck Garcia. We are not free to alter the meaning of the policy to avoid the result caused by Rakowski’s nonpayment of the premium for her $2,000,000 policy (see White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; cf. Greenfield v Philles Records, 98 NY2d 562, 573 [2002]).
Next, because there is no ambiguity in what Rakowski
Finally, GEICO established, prima facie, that it properly sent Rakowski notice of the cancellation (see Jones v Allstate Ins. Co., 221 AD2d 596, 597 [1995]). In opposition, Garcia failed to raise a triable issue of fact.
Garcia’s remaining contentions are without merit.
Accordingly, the Supreme Court should have granted GEICO’s motion for summary judgment dismissing the complaint.
Dissenting Opinion
dissents, and votes to affirm the order appealed from, with the following memorandum, in which Austin, J., concurs: The issue presented in this case is whether an umbrella insurance policy provided by the defendant Government Employees Insurance Company (hereinafter GEICO) to Jeanne Rakowski was entire, such that it provided $2,000,000 of coverage in exchange for a premium of $505, or whether it was severable, such that it provided $1,000,000 of coverage in exchange for a premium of $306, and an additional $1,000,000 in coverage in exchange for an additional premium of $199. If the contract was severable, then Rakowski’s payment of $306 was sufficient to secure $1,000,000 of coverage for the entire policy period, a result which would avoid a forfeiture of Rakowski’s umbrella insurance protection for a portion of the policy period, as favored by the law (see Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc 2d 1044, 1047 [Sup Ct, Nassau County 1985], affd 120 AD2d 597 [1986]). Since the question of whether the contract was entire or severable rests on the intention of the parties, and there are factual questions as to those intentions, as demonstrated by ambiguity in the policy, billing statements, and notice of cancellation, I would affirm the denial of GEICO’s summary judgment motion.
Jeanne Rakowski was issued a personal umbrella insurance policy by GEICO, effective October 10, 2003. The policy carried a limit of liability of $1,000,000, and covered Rakowski’s primary residence and a car. The policy was renewed for the policy period of October 10, 2004, to October 10, 2005. In March 2005, Rakowski made a change to the policy to add another vehicle, after which her total premium for the policy was $306.
On the same day, although Rakowski was on a “one-pay” rather than an installment payment plan, she was sent a bill for the “minimum amount due” in the amount of $306. On October 18, 2005, Rakowski was separately billed for $199. While Rakowski paid $306, she did not pay the additional $199. On November 4, 2005, GEICO issued a notice of cancellation for nonpayment of premium, advising that her “insurance as indicated below is hereby Cancelled as of 12:01 a.m.” on May 19, 2006. “Below” was a box containing the policy number and stating: “Please act now to prevent cancellation of your insurance protection.”
On the afternoon of May 19, 2006, Rakowski loaned her car to an employee and the car was involved in an accident in which the plaintiff was injured. The following day, GEICO called Rakowski to attempt to collect “the premium,” but no one answered the telephone.
Upon an award of damages to the plaintiff arising from the accident, the plaintiff requested payment by GEICO of the amount of the judgment that remained unpaid after exhaustion of primary insurance policies. When GEICO failed to pay, the plaintiff commenced this action against GEICO pursuant to Insurance Law § 3420 to recover the amount of the unsatisfied judgment against Rakowski. GEICO moved for summary judgment dismissing the complaint, asserting that the entire umbrella policy was cancelled hours before the accident. The plaintiff responded that the additional coverage attributable to the unpaid premium of $199 was severable, and thus, there was a $1,000,000 umbrella policy, paid for by Rakowski and in effect at the time of the accident. The Supreme Court denied the motion, concluding that issues of fact existed as to whether the policy was severable.
Here, GEICO failed to eliminate triable issues of fact as to whether the parties intended their contract to be severable, such that the notice of cancellation would affect only the increased coverage. In particular, the Amended Declarations provided to the insured listed a separate premium “for additional coverage to second million.” Rakowski was then separately billed $306, the same amount as the premium for the first $1,000,000 of coverage, and $199, the amount listed as the premium “for additional coverage to second million.” These facts are equivocal as to whether the parties intended the coverage for the first $1,000,000 and the coverage for the second $1,000,000, “and the consideration therefor” to be “common each to the other and interdependent” or to be divisible (First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d at 299; cf. Matter of Nationwide Mut. Ins. Co. [Mason—Lumbermens Mut. Cas. Co.], 37 AD2d 15, 19 [1971]; Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc 2d at 1046).
The notice of cancellation was similarly equivocal. It advised that Rakowski’s “insurance as indicated below” was cancelled. While the box that appeared “below” contained the policy number, it advised Rakowski that she should “act now to prevent cancellation of [her] insurance protection” (emphasis added) as opposed to her insurance policy. These facts make
Finally, the insured in First Sav. & Loan was billed a separate premium for additional coverage because the endorsement was added months after the policy period began and the premium was paid. Here, in contrast, no premium had been paid at the time Rakowski requested additional coverage. Yet, even though Rakowski was not on an installment payment plan, rather than sending a bill for $505, GEICO billed Rakowski $306, representing the premium charged for the first $1,000,000 of coverage, and, separately, $199, representing the additional $1,000,000 of coverage.' The deposition testimony of GEICO’s representative as to the alleged reasons Rakowski was billed in that manner, which concerned GEICO’s automated billing system, merely raises an issue of fact.
Similarly, as my colleagues in the majority point out, after Rakowski requested the changes to her policy, and, as GEICO characterizes it, rejected its offer of the renewal policy, GEICO issued an entirely new declarations page. Yet, GEICO did not list a premium of $505 for $2,000,000 of coverage. Under these circumstances, the fact that GEICO persisted in listing a $306 premium for $1,000,000 of coverage, and added a separate $199 premium for a second $1,000,000 of coverage is not, as a matter of law, irrevelant. The Amended Declarations, particularly when coupled with the separate billing statements, created a factual question as to whether the parties agreed that GEICO would provide Rakowski with $2,000,000 of coverage if she paid $505, or, if they agreed that GEICO would provide her with $1,000,000 of coverage if she paid $306, and $2,000,000 of coverage if she paid an additional $199.
GEICO further argues that the fact that it would have been liable to pay up to $2,000,000 under the policy had the accident occurred before May 19, 2006, demonstrates that the policy was not severable. This contention begs the question, however. If the policy was not severable, then GEICO would have been obligated to pay that amount prior to May 19, 2006, because, prorating the $306 premium, Rakowski paid for $2,000,000 of coverage up to that date. On the other hand, if the policy was severable, GEICO would only have been obligated to pay that amount because it failed to cancel the additional coverage sooner, on the ground of nonpayment.
In sum, GEICO failed to demonstrate, prima facie, that the subject policy was entire and indivisible, and that the notice of cancellation therefore affected the whole policy, as opposed to merely the additional $1,000,000 of coverage. As previously noted, “[c]ancellation, in general, is tantamount to forfeiture and not favored in the law” (Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc 2d at 1047). Since GEICO failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, I would affirm the denial of GEICO’s motion for summary judgment dismissing the complaint.
