Country-Wide Insurance v. Wagoner

57 A.D.2d 498, 395 N.Y.S.2d 300, 1977 N.Y. App. Div. LEXIS 11404
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 27, 1977
StatusPublished
Cited by16 cases

This text of 57 A.D.2d 498 (Country-Wide Insurance v. Wagoner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Country-Wide Insurance v. Wagoner, 57 A.D.2d 498, 395 N.Y.S.2d 300, 1977 N.Y. App. Div. LEXIS 11404 (N.Y. Ct. App. 1977).

Opinions

Cardamone, J. P.

This is a dispute between two insurance companies involving three insurance policies. One policy was issued by petitioner-appellant Country-Wide Insurance Company to cover a motorcycle owned by respondent insured Daniel Wagoner. The other two policies were issued by respondent Aetna Casualty and Surety Company to cover an automobile owned by Daniel Wagoner and an automobile owned by Clifford Wagoner, Daniel’s father. This appeal involves the interpretation of the standard New York Automobile Accident Indemnification Endorsement (Endorsement) which is at[500]*500tached to all three policies of insurance issued by the two insurance companies.

We are called upon to decide whether the insured effectively canceled his own liability insurance policy just prior to an accident in which he was struck and injured by a "hit and run” driver; and, if we conclude that the insured did so cancel his insurance policy, then, whether the Endorsement, required by subdivision 2-a of section 167 of the Insurance Law has viability independent of the insurance policy to which it is attached and survives such a cancellation, thereby affording coverage to the insured. Finally, we must decide whether the identical endorsement on the insured’s father’s policy provides coinsurance or merely excess insurance to the coverage provided in the insured’s own indemnification endorsement.

FACTS

On May 12, 1972 respondent Daniel Wagoner was injured in a "hit and run” accident while operating his 1971 Honda motorcycle. At that time he was the named insured in a liability insurance policy issued by Country-Wide on his Honda motorcycle. He was also the named insured in a policy of liability insurance issued to him by Aetna for 1962 Chevrolet automobile which he owned. Further, since Wagoner lived in the household of his parents, he was covered by the Aetna Endorsement attached to the liability policy issued to his father, Clifford Wagoner. All three of the above-described policies contained the following Endorsement required by section 167 of the New York Insurance Law which included the following—

"6. Other Insurance. With respect to bodily injury to an Insured while occupying an automobile not owned by the named Insured, this insurance shall apply only as excess insurance over any other similar insurance available to such Insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
"Except as provided in the foregoing paragraph, if the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall [501]*501not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance”.

In the early morning hours of May 1, 1972 11 days prior to the accident involving Daniel Wagoner’s motorcycle, his 1962 Chevrolet was totally demolished when it was struck by another vehicle. At about 10:00 o’clock in the morning of this accident, Daniel Wagoner reported this accident to insurance agent Robert Sleap. In the record before us, Mr. Sleap describes himself as an Aetna agent. Daniel told him that he would have no more use for insurance on the Chevrolet and Sleap advised him that he should cancel his automobile registration and obtain a rebate on his insurance policy. Acting on this advice, Daniel removed his plates from his car, returned them to the State motor vehicle office, canceled his automobile registration and mailed the notice of cancellation to Sleap on the afternoon of May 1, 1972.

By memo dated May 3, 1972 and mailed to Aetna, Sleap directed Aetna to cancel Daniel Wagoner’s insurance policy on his Chevrolet effective May 1, 1972 and to return the unearned premium. This advice was received in the Syracuse Aetna office on May 11, 1972 and a notice of cancellation dated May 11, 1972 and effective retroactively to May 1, 1972 was mailed to Daniel Wagoner.

Following the May 12, 1972 accident involving his motorcycle, Daniel Wagoner submitted uninsured motorist claims to both Country-Wide and Aetna with a demand for arbitration on Country-Wide. Special Term entertained an argument on the issue of the status of Country-Wide and Aetna as coinsurers under Clifford Wagoner’s (Daniel’s father) Aetna Endorsement and held a hearing on the issue of whether the Aetna policy issued to Daniel Wagoner on his Chevrolet had been canceled prior to the May 12, 1972 accident. Special Term determined that the policy Endorsement issued by Aetna to Clifford Wagoner applied only as excess insurance on Daniel’s claim against Country-Wide and that the policy issued by Aetna to Daniel Wagoner had been canceled prior to the accident of May 12, 1972. Accordingly, Special Term granted a permanent stay of arbitration to Aetna for both policies issued by it and denied Country-Wide application for a stay of arbitration. It ordered Country-Wide and Daniel Wagoner to proceed to arbitration solely with respect to the controversy [502]*502between them pursuant to Daniel Wagoner’s demand for arbitration. It is from this order that Country-Wide appeals.

CANCELLATION

Country-Wide contends that the cancellation procedure contained in the contract between the insured and Aetna was not followed; the notice provision for cancellation of insurance contained in section 313 of the Vehicle and Traffic Law was not followed by Aetna; and the Endorsement has an existence independent of the main policy and that it must be separately and expressly canceled.

Aetna concedes that if the policy on Daniel Wagoner’s Chevrolet is found to have been in effect on the date of the motorcycle accident, the second and not the first paragraph of Condition 6 of the Endorsement, above quoted, contained in the policy will apply and, as to that Endorsement, Aetna will be a coinsurer on Daniel’s claim with Country-Wide.

The Aetna policy contains a provision permitting cancellation at the request of the insured. This is a common provision in insurance policies (30 NY Jur, Insurance, §§ 721, 737). The "cancellation” provision is contained in Condition 17 of the main policy which states, in part, as follows: "This policy may be cancelled by the Insured named in Item 1 of the declarations by mailing to the Aetna Casualty written notice stating when thereafter the cancellation shall be effective” (emphasis added). In order to effectuate a cancellation of the policy where the insured has a right to cancel it, the insured must make such a request to the insurer or its authorized agent (Crown Point Iron Co. v Aetna Ins. Co., 127 NY 608). Once an unconditional request for cancellation is made by the insured, the policy is deemed, ipso facto, canceled upon receipt of the request, and it is not necessary for the insured to take any further action (Gately-Haire Co. v Insurance Co. of Pa., 221 NY 589). There is no requirement that the unearned portion of the premium be returned by the insurer as a condition precedent to effective cancellation by the insured; but, rather, a request for cancellation by the insured, once received, effects the cancellation at once.

Although Mr.

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Bluebook (online)
57 A.D.2d 498, 395 N.Y.S.2d 300, 1977 N.Y. App. Div. LEXIS 11404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/country-wide-insurance-v-wagoner-nyappdiv-1977.