In re the Arbitration between Liberty Mutual Insurance & Griffin

122 Misc. 2d 310, 471 N.Y.S.2d 221, 1984 N.Y. Misc. LEXIS 2846
CourtNew York Supreme Court
DecidedJanuary 9, 1984
StatusPublished
Cited by2 cases

This text of 122 Misc. 2d 310 (In re the Arbitration between Liberty Mutual Insurance & Griffin) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Arbitration between Liberty Mutual Insurance & Griffin, 122 Misc. 2d 310, 471 N.Y.S.2d 221, 1984 N.Y. Misc. LEXIS 2846 (N.Y. Super. Ct. 1984).

Opinion

OPINION OF THE COURT

Harold Hyman, J.

In this application to stay arbitration the issue for determination is whether Allstate Insurance Company (hereinafter Allstate) insured one Gregg Shaefer as an assigned risk on October 12, 1982, the date on which the Shaefer vehicle was involved in an accident with the respondent Minnie Griffin, so that said respondent’s claim under the uninsured motorist indorsement of a policy issued by petitioner would be unwarranted.

A hearing was held before me on October 12, 1983, at which time the parties stipulated to the following facts:

[311]*311The Shaefer vehicle was insured under a policy of insurance issued by Allstate pursuant to the New York Automobile Insurance Plan (also known as “assigned risk plan”), which insurance is alleged to have been canceled by said insurer, effective May 21, 1982. It was further conceded that Allstate timely issued its notice of cancellation to the insured, but never notified the Commissioner of Motor Vehicles of such cancellation.

Petitioner contends that this cancellation was ineffective inasmuch as the notice was not in compliance with relevant provisions of the New York Automobile Insurance Plan and the Vehicle and Traffic Law of the State of New York. The areas of noncompliance, as propounded by the petitioner, are as follows: (1) that the right of review and appeal statement on the back of the notice was not in 12-point type as required by section 313 of the Vehicle and Traffic Law; (2) that the language used in advising the assigned risk of his right to review deleted reference to the “right to appeal”; and (3) that the notice of cancellation was not filed with the Commissioner of Motor Vehicles within 30 days pursuant to subdivision 2 of section 313 of the Vehicle and Traffic Law.

At the outset, since the attempted cancellation occurred prior to the effective date of the 1981 amendments to subdivisions 2 and 3 of section 313 of the Vehicle and Traffic Law (as amd by L 1981, ch 569, §§ 4, 5, eff Sept. 1, 1982), the situation at bar falls within the well-settled rule that failure to notify the Commissioner of Motor Vehicles of a cancellation of insurance does not affect the validity of the notice of termination and thus render such cancellation ineffective as against third persons (Capra v Lumbermens Mut. Cas. Co., 31 NY2d 760; Perez v Hartford Acc. & Ind. Co., 26 NY2d 625, affg 31 AD2d 895; Hanover Ins. Co. v Eggelton, 88 AD2d 188,191; State Farm Mut. Auto. Ins. Co. v Katan, 75 Misc 2d 82).

Turning attention to the remaining contentions, there appears to be no decisional law on the issue concerning the form and content of the cancellation notice that must be sent to an assigned risk. Therefore, examination is in order of the pertinent provisions of the automobile insurance [312]*312plan and the Vehicle and Traffic Law as they existed in May, 1982 when the subject notice was issued.

New York Automobile Insurance Plan

“Sec. 18. CANCELLATIONS * * *

“3. Notice of all cancellations shall be in conformity with the Vehicle and Traffic Law”.

“Sec. 19. RIGHT OF REVIEW AND APPEAL

“an insured given notice of cancellation of insurance * * * may request that such action be reviewed by the Committee. Each notice of cancellation * * * shall contain or be accompanied by a statement that the insured * * * has a right to a review of such action by the Committee of the Plan and shall contain the address to which the request for review should be directed.

“The Plan shall promptly notify the insurer, the insured * * * and the Superintendent of Insurance of the Committee’s determination * * *

“If any * * * insured is aggrieved by any determination of the Committee, he may appeal to the Superintendent of Insurance. Each notice of determination made by the Committee shall include a statement of such right [of appeal] and shall contain the address to which the request by the insured for an appeal should be directed * * *

“An appeal by an insured shall not operate as a stay of cancellation”. (Emphasis added.)

Vehicle and Traffic Law

“§ 313. Notice of termination. * * * Every such notice of termination for any such cause whatsoever sent to the insured shall include in type of which the face shall not be smaller than twelve point a statement that proof of financial security is required to be maintained continuously throughout the registration period and that failure to maintain such proof of financial security requires revocation of the registration of the motor vehicle, unless the registration certificate and number plates of such vehicle have been surrendered to the commissioner prior to the time at which the termination becomes effective.”

In this court’s view, both the foregoing language as well as the clear contrast in intent behind the statutorily required inclusion in a cancellation notice of a financial responsibility statement in 12-point type versus the plan-mandated rule regarding notice to the assigned risk of his [313]*313right to review his insurance cancellation, refute petitioner’s contention that the latter notification must comply with the 12-point type requirements prescribed by section 313 of the Vehicle and Traffic Law.

Examination of the “Notice of Cancellation for NonPayment of Premium” that was sent by Allstate to its insured, Gregg Shaefer, reveals that it included within the textural body of the notice, the financial security clause in conformity with the Vehicle and Traffic Law and in compliance with subdivision 3 of section 18 of the automobile insurance plan. The plain purpose of such a clause and the 12-point type requirement was to give the insured clear and timely notice prior to cancellation so as to permit him to procure other insurance. It is the third party potentially involved in an occurrence with the insured who would be the prime beneficiary of notification to the insured alerting him to the impending loss of coverage and revocation of registration. In contrast, the right of review that is afforded an assigned risk need not necessarily occur or be invoked during the grace period required under the statute to permit the insured to pay the past due premium, procure a replacement policy or surrender his automobile registration. In large measure the right of the assigned risk to have his insurance cancellation reviewed by the committee of the plan is a postcancellation administrative remedy. Therefore, notice of this right of review does not take on the same urgency as the financial security clause and need not comply with the rigid statutory requirements regarding form and content.

An added argument against the contention that the right of review statement must comply with the 12-point type requirements prescribed by section 313 is that the statute itself limits the print requirement solely to the financial security clause, and now by case law, to any language contained in the notice referring to said clause (see Matter of Midwest Mut. Ins. Co. [Sinnott State Farm Mut. Ins. Co.], 96 AD2d 530). Moreover, unlike the option provided under the plan rules permitting the right to review statement to accompany the formal notice of cancellation, the statute specifically requires that the financial security clause must be included within the textural body [314]*314of the notice.

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Cite This Page — Counsel Stack

Bluebook (online)
122 Misc. 2d 310, 471 N.Y.S.2d 221, 1984 N.Y. Misc. LEXIS 2846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-liberty-mutual-insurance-griffin-nysupct-1984.