Handelsman v. Sea Insurance , 600 N.Y.S.2d 761 ( 1993 )

In an action for a judgment declaring that the defendant Sea Insurance Company, Ltd., is obligated to defend and indemnify Thomas Alberino and Dorothy Alberino with respect to an automobile accident which occurred on March 16, 1988, between the plaintiffs’ vehicle and the Alberinos’ vehicle, the defendant Ann Samochwal, a passenger in the plaintiffs’ vehicle, appeals from an order of the Supreme Court, Kings County (Vinik, J.), dated November 2, 1990, which granted the motion of the defendant Sea Insurance Company, Ltd., for summary judgment, denied her cross motion for summary judgment, and declared that Sea Insurance Company, Ltd., is not obligated under the terms and conditions of the policy of insurance issued to the defendant, Robert Alberino, to defend or indemnify the defendants, Dorothy and/or Thomas Alberino, or to pay for bodily injuries or property damages for which the defendants, Dorothy and/ or Thomas Alberino, become legally liable as a result of the March 16, 1988, accident involving the defendant Thomas Alberino’s operation of a vehicle owned by Dorothy Alberino.

Ordered that the order is affirmed, with costs to the defendant-respondent Sea Insurance Company, Ltd.

The defendant Richard Alberino was the owner of two cars insured by Sea Insurance Company, Ltd. (hereinafter the carrier). His wife, Dorothy Alberino, owned a 1979 Datsun which was insured by a different insurer and which was being driven by their son, Thomas Alberino, vzhen it was involved in an accident with a vehicle owned and operated by the plaintiff Florence Handelsman. The plaintiffs sought to recover damages from the carrier over and above those provided by the insurance company covering Dorothy Alberino’s automobile, and commenced this declaratory judgment action against all parties involved in this accident. Thereafter, the carrier moved for summary judgment dismissing the declaratory judgment action, and the defendant Ann Samochwal, a passenger in the Handelsman vehicle, cross-moved for summary judgment against the carrier. The Supreme Court granted the motion, denied the cross motion, and found that the policy issued to Richard Alberino was never written to cover the wife’s car or the son’s operation of that vehicle.

On appeal, the appellant contends that the language of the policy issued by the carrier to Richard Alberino provided coverage for his wife’s car in the first instance and that the carrier’s attempt to deny coverage was, in fact, based upon an ambiguously worded exclusionary clause contained in the policy. Therefore, according to the appellant, the carrier was required to give written notice of disclaimer and, having failed to do so, it is obligated to provide excess coverage. We disagree.

It is well settled that to effectively disclaim liability or deny coverage for death or bodily injury under an automobile liability insurance policy, a carrier must "give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage” (Insurance Law § 3420 [d]; Blee v State Farm Mut. Auto. Ins. Co., 168 AD2d 615). However, "[t]he Legislature did not intend by its use of the words 'deny coverage’ to bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle” (Zappone v Home Ins. Co., 55 NY2d 131, 135-136).

Contrary to the appellant’s contentions, we conclude that it is manifest, by the clear and unambiguous language of the policy, that the wife’s car was excluded from coverage in the first instance (see, Government Empls. Ins. Co. v Kligler, 42 NY2d 863). Accordingly, the carrier was not required, under Insurance Law § 3420 (d), to send written notice of its denial of coverage, since it never provided any coverage for this particular vehicle (see, Zappone v Home Ins. Co., supra, at 138).

We have considered the appellant’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta and Santucci, JJ., concur.