State of New York
Supreme Court : County of Monroe

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case bears a superficial resemblance to Matijiw v Security Mutual Ins. Corp., decided by this Court in June of 2001. In both cases the insurer disclaimed coverage of an alleged tortfeasor in what was characterized alternately as an assault and an accident, and in both cases the victim, after obtaining a judgment against the tortfeasor, attempted to collect that judgment from the insurer. In Matijiw the tortfeasor had defaulted, a finding was entered of accidental rather than intentional injury, and this Court then ruled that it was improper for the insurer to relitigate matters which it had declined to try. The Appellate Division reversed on this issue, and the case is once again pending.

In the present case, however, another Justice of this Court has held, after a summary judgment proceeding, that the tortfeasor in question struck the plaintiff several times with a baseball bat, a fact which no party seriously disputes. After a trial on damages involving the tortfeasor and his brother, whom the insurer did defend, the plaintiff has made a demand on the insurer for payment. The insurer does not here seek a new trial on the nature of the tortfeasor's conduct, as it did in Matijiw; instead, it defends on the basis that the disclaimer of coverage was proper and was supported by the finding of the other Court.

The insurer also raises, as a threshold issue, the provisions of Insurance Law § 3420. This section requires that the plaintiff must present a judgment against an insured to the insurer and wait thirty days for the insurer to satisfy it. Only then may the plaintiff bring a direct action against the insurer.

The plaintiff herein has not complied with this requirement, simply because the other Court did not issue its decision until recently. That decision had been expected for several months and this proceeding has been adjourned numerous times while the parties waited. As all issues have now been briefed and argued, there is little point in dismissing the action as premature only to hear it again in a few weeks' time, when the technical requirements of the Insurance Law would have been met. In the interest of judicial economy, if nothing else, the Court therefore deems this a declaratory judgment action and shall proceed to the merits of the case.

It should be stressed that the policy here is a homeowner's policy, and the two alleged tortfeasors are children of the named insureds. Curtis Johnson, Jr. and his brother Valice were involved in an altercation with plaintiff Rodney Peters in 1991. As noted above, Curtis hit Peters several times with a baseball bat. The involvement of Valice Johnson was less certain. He fell to the ground with the victim, whether in an attempt to assist Curtis by holding him or accidentally is not clear.

The plaintiff's complaint is entirely based on State Farm's disclaimer of coverage for Curtis; the insurer has defended Valice throughout. Plaintiff argues primarily that the disclaimer, which was issued on April 9, 1992, was untimely. State Farm replies that it was notified on the claim on January 16 of that year, issued two letters of reservation while it conducted its inquiry, and disclaimed in a timely fashion. In addition, State Farm argues that the assault was not under any interpretation an accident. Because Curtis's actions were intentional, the assault was not an occurrence within the policy language, and therefore no disclaimer was needed. This is strongly disputed by the plaintiff, who also charges the insurer with bad faith--a claim which, if upheld, would obligate the insurer to pay the full amount of damages (in excess of $300,000) instead of its $100,000 policy limit.

The court does not find the disclaimer untimely. Most recent decisions have held that an unexplained two month delay in issuing a disclaimer is unreasonable as a matter of law (see, e.g., Nuzzo v Griffin Technology Inc. et al., 222 AD2d 184). In the present case, however, the disclaimer was not unexplained and in fact the insurer was in touch with its insureds during its investigation of the claim. Whether or not the two different insureds were covered by the policy turns on questions of fact and required investigation into the events and the accounts of various witnesses. Under these circumstances the court does not consider the four-month delay to be unreasonable.

Plaintiff argues that the delay was far longer than the four months admitted by State Farm, and presents a "timeline" asserting that the first significant communication took place in July 1991, nine months before the disclaimer. These alleged communications with the insurer turn out, however, to be nothing of the kind. The first is a letter from plaintiff's counsel to the insured, suggesting he contact State Farm. The next is a letter from Valice Johnson's attorney, whom counsel claims was acting as an agent for State Farm. Neither of these contacts established that the policy holder had taken counsel's advice and presented proof of loss or in fact any notice to State Farm. There is no evidence whatsoever to refute State Farm's proof that it had no notice of the claim until January 16, 1992.

Further, the Court agrees with State Farm that Curtis's actions were clearly voluntary and intentional, and cannot be considered an occurrence within the policy language. It seems the height of legalistic scholasticism to argue over whether hitting someone on the head with a baseball bat is an intentional or accidental act, but in fact the law is not such a ass (in Mr. Bumble's words) as to doubt the common sense meaning of "accident". The cases plaintiff's counsel cites are so easily distinguishable as to be pointless. The 1939 case of Floralbell Amusement Corp. v Standard Surety & Casualty Co. (256 App Div 221) held that an assault by an employee of the insured, for whose actions the insured was liable, was accidental--that is, unexpected--from the point of view of the employer. This is a very reasonable conclusion; one hopes, at the very least, that theater owners do not hire ushers that they anticipate will attack patrons. The present case, though, deals with the assault of an insured. The lawsuit was not brought against the parents under the theory that they were legally responsible for their sons' actions; it was brought against Curtis Jr. and Valice Johnson, both of them considered to be directly insured under the policy language.

At oral argument plaintiff's counsel cited a recent Third Department case, Slayko v Security Mutual Ins. Co. (285 AD2d 875), describing it as holding that a shotgun blast in the direction of a plaintiff was an accident and thus an occurrence if the resulting damage was unintended. Counsel added that, as here, the tortfeasor in Slayko pleaded guilty to reckless assault. But the case turns out to say nothing of the sort. The key distinction appears in the third sentence of the decision: the tortfeasor "was apparently unaware that the gun was loaded."

It is an act of stupidity to point a gun at someone and pull the trigger, even if one is certain that the gun is unloaded; but it cannot be said that one thereby expects the gun to go off. This is an obvious case of negligence, gross or not, and just as obviously not an example of the intentional infliction of harm. Hitting a victim with a baseball bat is completely unlike playing with a gun that unfortunately is not as harmless as it was thought to be. Its legal import, in fact, is exactly the same as pointing a loaded gun at someone and pulling the trigger: the weapon is doing just what one anticipates, and the harm it causes cannot be said to be accidental or unexpected.

The defendant insurer has demonstrated its entitlement to summary judgment dismissing the complaint. Its disclaimer was timely, and ultimately unnecessary in view of the intentional nature of Curtis Johnson, Jr.'s conduct. Defendant's counsel may prepare an order dismissing the complaint, with costs.

DATED: Rochester, New York

June 11, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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