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The loss was not intentionalJanuary 6, 2018

Matter of Progressive Advanced Ins. Co. (Widdecombe), 2018 NY Slip Op 00061 (3d Dept. 2018)

(1)

“Initially, 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 AD3d 1048, 1049 [2007])[FN3]. Thus, this did not provide a proper basis for permanently staying arbitration of Widdecombe’s claim for SUM benefits.”

(2)

“We now 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). ”

(3)

“Thus, whatever Germain’s intent and criminal liability,[FN4] 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 NY3d at 355-356; see Matter of Utica Mut. Ins. Co. v Burrous, 121 AD3d 910, 911 [2014]; Matter of Progressive Northeastern Ins. Co. v Vanderpool, 85 AD3d 926, 927 [2011]). Consequently, Supreme Court erred in granting the stay of arbitration and Widdecombe’s claim should proceed to arbitration.”

Oh Progressive – not very Progressive?  My question – and I posed this to somebody – is whether the result would be different if this matter was guided under the intentional loss exclusion as opposed to whether there was coverage under the accident clause of the policy.  I do not know the answer, but it has me thinking,

2 Responses

  1. Nathan says:

    There is no intentional loss exclusion in the SUM endorsement

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