This is a proceeding arising out of an accident in which the infant claimant was injured by an automobile owned by one Ortiz and operated by one Diaz. The claimants–entitled by the respondent (which instituted this proceeding) as petitioners–served a notice of arbitration upon the Motor Vehicle Accident Indemnification Corporation, which entitled itself herein as the respondent. The respondent by this proceeding applied at Special Term for Motions for an order staying arbitration pending the fulfillment of certain conditions. Such an order was granted, and the preliminary determination of the issue as specified therein as to whether the alleged responsible vehicle was an uninsured vehicle at the time of the alleged accident’ was referred for trial.
The hearing on such initial injury issue was held before me without a jury, the trial concluding in October 1965. The proof is that the automobile involved in the accident was in fact ‘insured’, as that term is generally understood. But that does not dispose of the matter, for I permitted the claimants at the trial to project the issues that the vehicle was stolen from the assured, that at the time of the accident it was being operated by the driver without the permission of the owner, and that the insurance carrier had disclaimed liability. There was no suggestion of surprise on the part of the respondent, and both parties proceeded to trial on these issues. This procedure I adopted in the interests of justice and expedition, although the order of reference was not thus expressed in so many words, nor was a motion made to resettle the order accordingly before the Judge who had directed the personal injury trial of the preliminary issue in the first instance, nor was a motion made before me at the trial so to resettle the order, or to modify or expand it. It would, of course, have facilitated the trial, consideration and disposition of the case had the order directing a preliminary hearing been so drafted by counsel and entered by the court as to be clearly explicit and adequately inclusive.
It is, therefore, now a matter for my decision as to whether the procedure I followed was–on the law–a correct one; and, if so, whether the claimants–on the facts–proved by a preponderance of the credible evidence that the vehicle was stolen or used without permission, or whether there was a disclaimer by the insurance carrier.
The several conditions precedent listed in the statute are all factual issues, as to each of which the burden of proof is upon the claimant. Numbers (1), (2) and (7), quoted supra (Insurance Law, sec. 600), are not in issue in this case, none of them having been asserted–one way of the other–by either of the parties. As to Numbers (3) and (6), it was the uncontradicted testimony of a representative of the Fidelity and Casualty Company, the insurer of the allegedly responsible vehicle, that there was a policy of liability insurance in effect on the automobile in question 1 on the date in question, and that there has been neither disclaimer of liability nor denial of coverage by the insurer in regard to the accident.
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