A sharp differentiation must be made between (a) a finding that the insurance company is not liable under a valid policy because the injuries were not caused by accident and hence were not within the risks covered by the policy and (b) a finding that the company is not liable because the policy was not in force at the time in question or because there had been a breach of a condition of the policy by the insured rendering it unenforceable. In the latter case, the finding establishes that no enforceable insurance policy was in effect at the time of the injury; hence the automobile was an uninsured automobile within the meaning of the MVAIC endorsement. In the former case, the finding recognizes that there was a standard insurance policy of the required type in force at the time which covered all the risks which were required to be covered; hence no uninsured automobile was involved and MVAIC could not be held liable.
In regard to, and accordance with, the specific finding and final conclusion in McCarthy, which are not of as much significance to my present point as is the reasoning expressed by the court.
In the light, then, of the cases discussed above, and on the premise that reason, logic and pragmatism have a certain role to play in the development of the law, I had decided to invoke the broader meaning of the term ‘uninsured vehicle’, and thus determine in this single proceeding the several factual issues actually involved in a definitive disposition of the matters preliminary to the right to the claimants to arbitration.
In the process of preparing this opinion, I came across a decision of the Court of Appeals of this State, rendered after the close of the trial before me and after the final submission of briefs by counsel, which confirms my thought that, under an order of reference such as is here involved, it is proper that each of the several personal injury conditions precedent listed in the statute be considered, insofar as raised by the parties or otherwise relevant to the disposition of the matter. Indeed, the opinion of the Court of Appeals, as I understand it, makes such a procedure not only proper but would seem to forecast a holding that it is mandatory.
In the situation dealt with there, one Malone was involved in an accident with a vehicle owned and operated by one Hovermale. After the accident, Hovermale’s insurer, Crown voided the policy as of its effective date and disclaimed any liability in regard to the accident. Malone demanded arbitration against MVAIC, which then moved for a stay on the theory that there must first be a preliminary judicial determination of the validity of the disclaimer. Special Term denied the application of MVAIC for a stay of arbitration. The Appellate Division, Second Department, affirmed the ruling of Special Term, citing a number of cases to the effect that the relevant condition precedent to arbitration was the fact, not the validity, of a disclaimer by the insurer.
The important point to be noted in the analysis of Malone and the consideration of its relevance to the instant matter is that, in dealing with a case which quite clearly involved only one of the conditions precedent listed in the MVAIC statutes–that of a disclaimer of liability by the insurer–the Court of Appeals spoke of the requirement of the MVAIC endorsement that for MVAIC coverage the alleged tort-feasor must have been uninsured at the time of the alleged accident. In my view, this is a clear declaration that the term ‘uninsured’, when used as in the matter before me, is a generic term which encompasses at least some aspect of each and every one of the several conditions precedent listed in the statutes, and not merely a narrow one based upon a strictly limited construction of the statute and Endorsement.
The question then becomes whether any of the situations resulting in a vehicle being ‘uninsured’, in the generic sense, exists here. If that definition is applied, then the petitioners’ position has two facets to be considered. One is that, because the car was stolen or otherwise used without permission, it may be presumed in advance that the insurer will disclaim, and, as a consequence, that the policy is not enforcible. The other is that the conditions precedent set forth in the statute are alternatives, and that disclaimer is not required in all, but only in one, of them–and not where, as here contended, the vehicle is stolen or operated without permission.