In the Matter of the Arbitration between PROGRESSIVE ADVANCED INSURANCE CO., Respondent, and MICHAEL WIDDECOMBE, Appellant, et al., Respondents.
Calendar Date: November 13, 2017
Levine Dolan, PC, New York City (Jeffrey L. Schulman of
Pasich LLP, of counsel), for appellant.
& Kaplan, Yonkers (Michael A. Zarkower of counsel), for
Progressive Advanced Insurance Co., respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an amended order of the Supreme Court (McGuire, J.),
entered December 21, 2016 in Sullivan County, which granted
petitioner's application pursuant to CPLR 7503 to
permanently stay arbitration between the parties.
February 9, 2015, respondent Robert Germain left a bar after
consuming a number of alcoholic beverages and got into the
driver's seat of his parked car. Concerned that Germain
was not fit to drive,  respondent Michael Widdecombe, an
acquaintance of Germain, left the bar and tried to persuade
Germain to come back inside the bar. Widdecombe attempted to
stop Germain from operating the car by placing his foot
inside the open driver's door and reaching to grab the
keys, which were in the ignition. However, Germain managed to
start the engine and put the car in drive, causing it to move
forward, trapping Widdecombe and dragging him for
approximately 20 feet, resulting in injuries to his leg
. As it appeared that Germain may have
been uninsured at the time of the incident, Widdecombe filed
a claim for uninsured motorist benefits under a supplementary
uninsured/underinsured motorist (hereinafter SUM) endorsement
in his policy with petitioner, his automobile insurer, and
filed a demand for arbitration. Petitioner disclaimed
coverage and commenced this proceeding to stay the uninsured
motorist arbitration. Petitioner argued that Germain was not
uninsured as his vehicle was insured at the time of this
incident by respondent Hartford Underwriters Insurance
Company and, alternately, that Widdecombe's injuries were
the result of intentional acts and were, therefore, not due
to an accident within the meaning of the SUM coverage.
Petitioner also sought to add Hartford and Germain as
Court granted a temporary stay of arbitration and added
Hartford and Germain as parties to the proceeding. The court
conducted an evidentiary, framed-issue hearing to resolve the
factual disputes regarding, among other things, whether
Germain was insured and, if not, Widdecombe was entitled to
arbitration of his claim for SUM coverage under his policy
with petitioner. By an amended decision and order dated
December 8, 2016, the court permanently stayed arbitration,
finding that Germain was uninsured, but that a policy
exclusion precluded Widdecombe's claim. On
Widdecombe's appeal, we reverse, finding that he is
entitled to arbitrate his claim.
it is undisputed, as Supreme Court correctly determined, that
Germain is an uninsured motorist as none of his automobile
policies, including a prior policy with Hartford, was in
effect on the date of this incident. Thus, any exclusion in
Germain's former policy with Hartford is irrelevant to
this incident. Further, given Germain's uninsured status,
Widdecombe properly filed a claim for SUM coverage under his
own policy with petitioner. To the extent that the court held
that petitioner's disclaimer of coverage was proper based
upon an intentional acts exclusion in Widdecombe's
policy, this was clear error. Widdecombe's policy, in
effect on the date of this incident, does not contain an
intentional acts exclusion for uninsured motorist coverage or
anything similar to it (compare New York Cent. Mut. Fire
Ins. Co. v Wood, 36 A.D.3d 1048, 1049 )
. Thus, this did not provide a proper
basis for permanently staying arbitration of Widdecombe's
claim for SUM benefits.
turn to the dispositive question on appeal, which is whether
Widdecombe's injuries were caused by an accident within
the meaning of his policy with petitioner. Widdecombe's
policy included SUM coverage, for which he paid a premium,
providing for payment of "all sums that the insured...
shall be legally entitled to recover as damages from the
owner or operator of an uninsured motor vehicle because of
bodily injury... caused by an accident arising out
of such uninsured motor vehicle's ownership, maintenance
or use" (emphasis added). The term "accident"
is not defined in the policy and, thus, we must look to the
definition provided by the Court of Appeals in State Farm
Mut. Auto. Ins. Co. v Langan (16 N.Y.3d 349, 353
). In State Farm, the Court held that, for
purposes of an uninsured motorist endorsement, when an
occurrence is - from the insured's perspective -
"unexpected, unusual and unforeseen, " it qualifies
as an "accident" (id. at 355 [internal
quotation marks and citation omitted]). As here relevant, the
uninsured policy in State Farm contained identical
language to Widdecombe's SUM policy. The Court further
held that, although the insured was also the victim,
"the intentional assault of an innocent insured is an
accident within the meaning of his or her own policy"
(id. at 356).
whatever Germain's intent and criminal liability,
this incident was an accident from Widdecombe's
perspective. Contrary to petitioner's contention,
Widdecombe's uncontroverted testimony established that
the incident "happened so fast" and, after he
attempted to grab the keys, Germain said that "he was
going to cut [Widdecombe's] leg off" and, as
Widdecombe tried to get his leg out of the car, Germain
"threw the car in drive" and "screeched"
away, dragging Widdecombe. As in State Farm, this
event "was clearly an accident from the insured's
point of view, " since having his leg trapped and being
dragged was sudden and "unexpected, unusual and
unforeseen" (State Farm Mut. Auto. Inc. Co. v
Langan, 16 N.Y.3d at 355-356; see Matter of Utica
Mut. Ins. Co. v Burrous, 121 A.D.3d 910, 911 ;
Matter of Progressive Northeastern Ins. Co. v
Vanderpool, 85 A.D.3d 926, 927 ). Consequently,
Supreme Court erred in granting the stay of arbitration and
Widdecombe's claim should proceed to arbitration.
P.J., Clark, Aarons and Rumsey, JJ., concur.
that the amended order is reversed, on the law, with ...