RLI Insurance v. Smiedala

Scudder, P.J., and Gorski, J. (dissenting in part).

We respectfully dissent in part. In our view, this is not a case in which the policy “covers neither the person nor the vehicle involved in [the] automobile accident” (Zappone v Home Ins. Co., 55 NY2d 131, 139 [1982]). At the time of the accident, defendant Michael J. Hale was using his personal vehicle to conduct business on behalf of defendant Regional Integrated Logistics, Inc. (Regional). The commercial automobile insurance policy at issue provides coverage for any automobile, regardless of ownership, subject to certain specified exceptions. In light of the broad and inclusive language of the policy, we disagree with the conclusion of the majority that a determination that Hale was borrowing a *1556Regional vehicle at the relevant time is “an unnatural or unreasonable construction” of the policy (Maurice Goldman & Sons v Hanover Ins. Co., 80 NY2d 986, 987 [1992]). We therefore conclude that, but for the application of specified exceptions to coverage, Hale’s claim falls within the policy’s coverage provisions, and Regional was required to provide a timely denial of coverage based upon those specified exceptions (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 190 [2000]; Penn-America Group v Zoobar, Inc., 305 AD2d 1116, 1117-1118 [2003], lv denied 100 NY2d 511 [2003]). Inasmuch as we agree with the majority that plaintiff failed to provide a legitimate excuse for its untimely disclaimer of liability or denial of coverage (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 68-69 [2003]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979], rearg denied 47 NY2d 951 [1979]), we would affirm the judgment in its entirety. Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.