In Re the Ancillary Receivership of Interstate Insurance

393 N.E.2d 476, 47 N.Y.2d 909, 419 N.Y.S.2d 482, 1979 N.Y. LEXIS 2169

• Court: New York Court of Appeals
• Decided: June 26, 1979
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

When its liability insurance carrier, the Interstate Insurance Company, became insolvent, petitioner, Merritt Division of Murphy Pacific Marine Salvage Corporation, was forced to satisfy a judgment out of its own assets. Seeking reimbursement, petitioner filed a claim with respondent, the Superintendent of Insurance, purportedly in accordance with the provisions pertaining to the New York Property and Liability Insurance Security Fund (Insurance Law, § 334). Respondent denied the claim on the ground that the incident out of which liability arose occurred in Virginia waters, while the statute only covers "risks located or resident in” New York (§ 334, subd 2). In this special proceeding in which petitioner seeks to compel payment of its claim out of the fund, both Special Term and the Appellate Division have denied the requested relief. They did so on the basis, inter alia, that the term risk "has a commonly accepted meaning in the insurance business, viz., a 'risk’ is the physical property or person insured” (Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226, 243). Inasmuch as the fund covers only "risks” located in New York, liability stemming from an accident on a ship off the coast of Virginia can reasonably be deemed nonreimbursable.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.