[DOWNLOAD] "Matter Aetna Casualty & Surety Company v. John Scirica" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Matter Aetna Casualty & Surety Company v. John Scirica
- Author : Supreme Court of New York
- Release Date : January 04, 1991
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 76 KB
Description
DECISION & ORDER On December 15, 1986, the appellant, John Scirica, was involved in a two-car accident while driving
his employer's car. The petitioner, Aetna Casualty & Surety Company (hereinafter Aetna), was the insurer of the employer's
car. The appellant filed a claim with Aetna under the underinsured motorist provisions of the policy and subsequently moved
to compel arbitration. Aetna then commenced the instant proceeding to stay arbitration on the grounds, inter alia, that the
appellant had failed to document or prove whether he had been paid any moneys by the driver of the other vehicle, the responsible
tortfeasor, and failed to supply information indicating the amount of coverage afforded by the other driver's policy. Thereafter,
it became apparent that the appellant had settled his claim against the other driver without Aetna's consent in violation
of the terms of the policy and to the prejudice of Aetna's subrogation rights. Accordingly, the Supreme Court properly determined
that the appellant was precluded from asserting his underinsured motorist claim (see, State Farm Mutual Auto. Ins. Co. v Taglianetti,
122 A.D.2d 40; Weinberg v Transacmerica Ins. Co., 62 N.Y.2d 379). The appellant's contention that Aetna should be estopped from asserting this defense on the ground that it never informed
him of its disclaimer in writing (see, Insurance Law § 3420[d]), is unpreserved for appellate review since it is only raised
for the first time on appeal. In any event, we find that Aetna's papers in support of its application to stay arbitration,
specifically its reply affirmation, clearly informed the appellant in writing, of its disclaimer of liability, thus complying
with the statutory requirement. In view of the circumstances giving rise to the disclosure of the appellant's settlement with
the other driver, it cannot be said that Aetna's actions constituted a waiver of its right to disclaim liability. As soon
as Aetna was made aware of sufficient facts to support a disclaimer it disclaimed coverage (see, Schiff Assoc. v Flack, 51
N.Y.2d 692; cf. Farmers Fire Ins. Co. v Brighton, 142 A.D.2d 547; Matter of Fireman's Fund Ins. Co. v Freda, 156 A.D.2d 364).