Scahall v. Unigard Insurance

222 A.D.2d 1070, 635 N.Y.S.2d 856, 1995 N.Y. App. Div. LEXIS 14136

Opinion

—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing plaintiff’s action seeking to compel defendant, Unigard Insurance Co. (Unigard), to pay first-party (No-Fault) benefits pursuant to the policy issued to plaintiff. 11 NYCRR 65.15 (m) (2) (i) requires an insurance company to pay first-party benefits where coverage has been excluded for an applicant operating a vehicle while in an intoxicated condition "if such intoxicated * * * condition was not a contributing cause of the accident causing [his] injuries”. Plaintiff submitted proof that a tractor-trailer was obstructing plaintiff’s decedent’s lane of travel and that the driver of the tractor-trailer was cited for failure to yield the right-of-way. Plaintiff has demonstrated by proof in admissible form that there is a triable issue of fact whether there was a causal connection between the intoxication of plaintiff’s decedent and the accident (see, Cernik v Sentry Ins., 131 AD2d 952). The conflicting expert opinions, submitted by the parties to support their positions, should not be resolved on a motion for summary judgment (see, Luthart v Danesh [appeal No. 2], 201 AD2d 930). Therefore, whether intoxication was a contributing cause of the accident that would entitle Unigard to exclude coverage is a question of fact for the jury (see, Baron v Nationwide Mut. Ins. Co., 130 AD2d 967). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Pine, J. P., Lawton, Wesley, Callahan and Davis, JJ.