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JOSEPH JONES v. AETNA INSURANCE COMPANY (05/09/69)

SUPREME COURT OF NEW YORK, TRIAL TERM, KINGS COUNTY 1969.NY.41467 <http://www.versuslaw.com>; 300 N.Y.S.2d 59; 59 Misc. 2d 698 May 9, 1969 JOSEPH JONES, PLAINTIFF,v.AETNA INSURANCE COMPANY, DEFENDANT Owen Hoberman for plaintiff. William H. Morris and Donald V. Hunter for defendant. Walter R. Hart, J. Author: Hart


Walter R. Hart, J.

Author: Hart

 In this action brought pursuant to section 167 of the Insurance Law, plaintiff, a pedestrian in whose favor there is an unsatisfied judgment obtained against the owner of a motor vehicle which struck and injured him, seeks to recover a judgment, to the extent of coverage from the carrier which had prior to the occurrence insured the tort-feasor.

The facts adduced at the trial are not disputed. On May 30, 1961 plaintiff was injured when he was struck by a car owned and operated by one Clifton Weathesgy.

The defense to the present action is predicated on the circumstance that on March 29, 1961 defendant, by registered mail, sent a notice of cancellation to the assured effective April 11, 1961 at 12:01 a.m. for nonpayment of premium.

It is plaintiff's contention that the notice of cancellation was ineffective for two reasons:

(1) that 13 days' notice should have been given by mail instead of 12 days and one minute of the 13th day;

(2) that said notice of cancellation was not filed with the Commissioner of Motor Vehicles within 30 days of the effective date of the purported cancellation.

Plaintiff's contentions are based on an invalid premise since he erroneously relies on a statute which is inapplicable to the facts. This is evidenced by his citation of the cases of Johnson v. General Mut. Ins. Co., (26 A.D.2d 602); Cannon v. Merchants Mut. Ins. Co. (35 Misc. 2d 625) and Rotsettis v. Nationwide Mut. Ins. Co., (58 Misc. 2d 667). (See, also, Todd v. National Grange Mut. Ins. Co., N. Y. L. J., Nov. 14, 1968, p. 17, col. 5, decided by this court.) These cases are bottomed on section 576 of the Banking Law which provides that "When a premium finance agreement contains a power of attorney * * * enabling the premium finance agency to cancel any insurance contract * * * the insurance contract * * * shall not be cancelled unless such cancellation is effectuated in accordance with the following provisions ". (Emphasis supplied.) Paragraph (a) of subdivision 1 requires that 10 days' written notice be given to the assured by the premium finance agency; paragraph (b) explicitly states that if served by mail "at least three days for mailing such notice is added to the ten day notice period." Paragraph (g) provides that upon cancellation of a motor vehicle liability policy notice of such cancellation shall be filed by the insurer with the Commissioner of Motor Vehicles not later than 30 days following the effective date thereof. It is apparent from a reading of the statute that unless there is strict compliance with its provisions the policy is not effectively canceled. This then is the basis for the cases cited by plaintiff. The statute is comparable with subdivision 5 of section 54 of the Workmen's Compensation Law which provides: "No contract of insurance issued by an insurance carrier against liability arising under this chapter shall be cancelled * * * until at least ten days after a notice of cancellation of such contract * * * shall be filed in the office of the chairman". (See Matter of Otterbein v. Barbor Comeau Co., 272 N. Y. 149.)

In the case at bar there was no premium financing agreement and therefore the controlling statute at the time of the accident was section 93-c of the Vehicle and Traffic Law (now ยง 313) which provides that no contract of insurance shall be terminated where the cancellation is for nonpayment of the premium unless 10 days' notice of cancellation is given to the insured. No provision appears as in section 576 of the Banking Law requiring an additional three days for mailing. Plaintiff's reliance on section 164 of the Civil Practice Act (now CPLR 2103, subd. [b], par. 2) is without foundation. This clearly applies only to service of papers in a litigation. Plaintiff's claim that the court in Johnson v. General Mut. Ins. Co. (supra), stated the contrary is erroneous. In Kyer v. General Cas Co. of Amer. (14 A.D.2d 649), the carrier mailed the notice of cancellation to the insured on July 10, 1957. The court with respect thereto stated: "Thus the defendant's coverage of the vehicle was ended 10 days later on July 20, 1957."

Section 93-c of the Vehicle and Traffic Law also provided "Upon the termination of insurance by cancellation * * * notice of such cancellation * * * shall be filed by the insurer with the commissioner not later than thirty days following the effective date of such cancellation". It is to be noted that this provision is not prefaced by a statement comparable to those in the Banking Law and Workmen's Compensation Law to the effect that the cancellation shall not be effective unless the notice were filed as provided for in the statute. It has been held that a cancellation is not affected by the failure of the carrier to file notice thereof with the Commissioner of Motor Vehicles. The principal decisions construing this statute are Kyer v. General Cas. Co. of Amer. (14 A.D.2d 649, supra) and Murry v. Allstate Ins. Co. (16 A.D.2d 958 [2d Dept.]). Both of these decisions explicitly hold that the termination of insurance is unaffected by the failure of a carrier to file the notice of cancellation with the Commissioner of Motor Vehicles within 30 days after the effective date of cancellation as required by the Vehicle and Traffic Law. This court, too, in Todd v. National Grange Mut. Ins. Co. (supra), which involved a cancellation of a policy where there had been a premium financing agreement, wrote: "The cases cited by defendant Grange, of Kyer v. General Casualty (14 A.D.2d 649) and Murry v. Allstate (16 A.D.2d 958) are inapposite. Neither of these cases involved a cancellation pursuant to a purported power of attorney contained in a premium financing agreement."

Perforce of the doctrine of stare decisis the court is constrained to conclude that defendant in this action effectively canceled the policy of its insured, Weathesgy, prior to the accident. This holding however demonstrates that there is a gap in the concept to effectuate the public policy scheme of protection of innocent victims of motor vehicle accidents as envisioned by the Financial Security Act (Vehicle and Traffic Law, art. 6), the Safety Responsibility Act (Vehicle and Traffic Law, art. 7) and the Motor Vehicle Accident Indemnification Corporation Law (Insurance Law, art. 17-A). If, as occurred in the case at bar, no notice of cancellation is ever filed with the Commissioner of Motor Vehicles, an uninsured vehicle may continue to travel the highways of the State free to inflict injuries on others who have no means available to recover compensation. An inquiry addressed to the Department of Motor Vehicles would indicate that coverage was extant. The injured person is lulled into a false sense of security and fails to file a notice of claim with MVAIC within the 90-day period limited by subdivision (a) of section 608 of the Insurance Law and is precluded from prosecuting the claim. Such was the holding of a divided Court of Appeals in a proceeding brought by the plaintiff in this action against MVAIC (Jones v. MVAIC, 19 N.Y.2d 132, 135-136) where, in reversing the Appellate Division's affirmance of an order directing MVAIC to accept the filing of a notice of claim by plaintiff, the court stated:

"It is his [plaintiff's counsel] contention that it was impossible for his client to have complied with the provisions of subdivision (a) of section 608 since he did not learn nor could he have learned that Weathesgy was uninsured until long after the 90-day period.

"The argument advanced by the petitioner is a very appealing one. The rejection of a claim made by a person injured by an uninsured motor vehicle clearly runs counter to the general policy pervading the statute creating the Motor Vehicle Accident Indemnification Corporation. The Legislature, in creating the corporation, however, prescribed clearly the procedure to be followed in making a claim. With this procedure the petitioner has admittedly failed to comply. While compliance was difficult, if not impossible, courts are powerless to engraft judicial exceptions to periods of limitation prescribed by the Legislature.

"In view of the number of cases which appear to have involved problems similar to that in the case at bar, the Legislature may very well consider an amendment to the statute which would permit a claim to be filed in a case of this kind. Until ...


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