Florence Handelsman et al., Plaintiffs, v. Sea Insurance Company, Ltd.,
Respondent, et al., Defendants, Ann Samochwal, Appellant
85 N.Y.2d 96, 647 N.E.2d 1258, 623 N.Y.S.2d 750 (1994).
October 20, 1994
2 No. 162 (1994 NY Int. 156) Decided October 20, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Robin Mary Heaney, for appellant.
Stuart M. Herz, for respondent.
TITONE, J.:
This action arises out of an automobile accident involving Thomas
Alberino, who was driving a vehicle owned by his mother (Dorothy
Alberino), and Florence Handelsman, who was driving her own car and
was accompanied by Ann Samochwal at the time of the occurrence. The
allegedly injured parties, including Samochwal, sued the two drivers.
Dorothy Alberino was also sued as the owner of the Alberino vehicle.
This appeal concerns the extent to which an insurance policy that was
issued to Dorothy Alberino's husband and provides for coverage of
"family members" in some circumstances applies to this accident. We
hold that because of the policy's ambiguity, its terms must be
construed to extend coverage to Dorothy and Thomas Alberino for any
liability they may incur in connection with the Handelsman accident.
At the time of the accident, the car owned by Dorothy Alberino was
insured by defendant Sea Ins. Co. under a $10,000/$20,000 liability
policy. At the same time, Dorothy's husband, Robert Alberino, owned
two other automobiles, both of which were insured by Sea under a
$100,000/$300,000 liability policy. The present action was brought by
the Handelsmans in an effort to obtain a declaration that, having
failed to make a timely disclaimer, Sea was obligated to defend and
indemnify Dorothy and Thomas Alberino under the $100,000/$300,000
policy issued to Robert Alberino. The other injured parties, including
Samochwal, were joined as nominal defendants in the lawsuit.
In response to the Handelsman complaint, defendant Sea did not dispute
that it had failed to register a timely disclaimer. Rather, the
insurer took the position that it was nevertheless not liable because
the policy issued to Robert Alberino did not cover this occurrence in
the first instance and, under settled principles, a failure to
SNIPPETS:
Stuart M. Herz, for respondent.
This action arises out of an automobile accident involving Thomas Alberino, who was driving a
This appeal concerns the extent to which an insurance policy that was issued to Dorothy
We hold that because of the policy's ambiguity, its terms must be construed to extend
At the time of the accident, the car owned by Dorothy Alberino was insured by defendant Sea
The present action was brought by the Handelsmans in an effort to obtain a declaration that,
In response to the Handelsman complaint, defendant Sea did not dispute that it had failed to
Rather, the insurer took the position that it was nevertheless not liable because the policy
Co., 55 NY2d 131, 143;
This theory was tested when Sea and its nominal co-defendant Samochwal cross-moved for
Co. (55 NY2d 131, supra).
One Appellate Division Justice dissented, taking the position that the $100,000/$300,000
Thus, in the present case, the obligation of the insurer, which did not timely disclaim,
The general coverage provision of the policy in issue states that the insurer will pay
For "your covered auto," any person or organization but only with respect to legal
For any auto or "trailer," other than "your covered auto," any other person or organization
Further, under the terms of clause 1 of section B, both of those individuals are covered for
Accordingly, the order of the Appellate Division should be reversed, with costs to defendant
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