The statute provides that the insurer shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant (Insurance Law sec. 167). There has been no such notice here, written, oral or implied. 2 Further, there has been no proof that the alleged driver, Diaz, was not, himself, covered by a policy of liability insurance.
The petitioner’s assertion, as I have stated, is that the vehicle was stolen and operated without the permission of the owner (Numbers (4) and (5) on the above-enumerated list of conditions precedent), and was, therefore, uninsured within the meaning of the order providing for a trial of that preliminary issue.
It would seem that, under a strict construction of the definitions of the statutes and the policy endorsement, this contention would be lacking in force. For, while an injury caused by a vehicle which was stolen or operated without permission, on the one hand, and one sustained due to a vehicle as to which no policy of indemnity was in effect at the time or which was uninsured and registered outside the State of New York or which was a hit-and-run vehicle, on the other, will have the same result–that is, a proper claim against the MVAIC–they are not precisely the same thing. And thus it may well be argued that, inasmuch as the injury statutes and the endorsement specifically define the phrase used in the order of Special Term, the scope of the issue to be determined by me is no broader than items (1), (2) and (3) set forth in Section 600.
There are two situations which are relevant in connection with this contention: (1) When the Judge at Motion Term–before [48 Misc.2d 963] whom an application is made permanently to stay the arbitration (in effect, to hold that the claimant is not entitled to the arbitration which he seeks)–refers an issue of fact for preliminary determination to the Trial Court, be it Judge alone or Judge and jury, and holds in abeyance the disposition of the motion-in-chief pending determination of the issue; and (2) when such a matter is referred to the Trial Court by the Justice at Motion Term who does not hold in abeyance the resolution of the application, albeit he does not appear to have made a final disposition of the motion.
In the former situation, I have held that the Trial Court is limited to consideration of issues within the specific terms of the reference. Somewhat, but not altogether, analogous is the case where a matter is referred to a Referee who is to hear and report. Such a referee may not proceed beyond the order of reference; nor, indeed, may he stop short of it. 3 When, however, the referring Justice has not ‘held in abeyance’ (which is the situation here), the question arises whether the Trial Judge has the limited scope of the Referee or the wider scope which he would normally have in a general trial before him. And, in considering this issue, it should be kept in mind that, under the Civil Practice Law and Rules, special proceedings are to be distinguished from actions and motions in respect of a number of aspects–not only of procedure, but of substance as well.
It is the thrust of the contention that the trial court has limited competence in this province that, even where the Justice in Motion Term has reserved nothing for his later disposition, the basic concept of a reference is the isolation of some issue or issues of fact from the proceeding as a whole for a separate determination; that the Trial Judge can not, generally, know what the referring Justice resolved to his own satisfaction before making the order directing a hearing. This theory thus reaches the conclusion that here, as in the other instance discussed, nothing more is before the Trial Justice in such case than the narrow injury issue or issues specifically referred.
But I was of the view at the trial that the proper rule to be applied in a matter such as this–where the crux of the issue is the alleged ‘uninsured’ status of the offending vehicle at the time and place of the accident–is a hearing procedure which would not result in a multiplicity of applications and proceedings premised upon a breakdown of the several factual elements upon which lack of insurance is grounded. Both the claimant and the MVAIC are entitled to have the validity of all of the preliminary statutory or contractual bases of the claim determined–in a fashion more clear than the possible unarticulated ruling of the invalidity of some of them by a judge who orders trial on only others of them. I considered that a different procedure would have been an unsatisfactory and uneconomic utilization of court resources, as well as an unwarranted expenditure of time and energy of litigants and accident counsel.
To Be Cont…