The importance of this North Carolina case, for present purposes, is that, in determining whether the responsible vehicle was ‘uninsured’, the Court felt that, in construing the phrase involved, it must go beyond the specific definitions to be found in the statute and the policy endorsement, and determined that the vehicle was to be deemed ‘uninsured’ in the eyes of the law not because there was in fact no policy of indemnity insurance issued and in fact in force, but because the vehicle involved was at the time being operated without the permission of the owner, although that circumstance is not within the specific statutory and policy definitions.
The New York case of Travelers Indemnity Company, cited above, was decided in 1962. It arose out of an accident in March 1959. The insurance policy involved had been issued in May 1958, prior to the effective date (January 1, 1959) of the Motor Vehicle Accident
Indemnification Corporation Law (Insurance Law, art. 17-A). The policy carried an endorsement known as ‘Family Protection Coverage Endorsement’, which provided for insurance coverage to certain dollar limits for bodily injury caused to the insured by the operation of an ‘uninsured automobile’. Under Clause II(c) of the endorsement there involved an ‘uninsured automobile’, insofar as here applicable, means ‘an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile.’ It will be noted that this provision is substantially the same as that to be found in Insuring Agreement II(b)(1) of the New York Automobile Accident Indemnification Endorsement concerned in the instant matter and quoted supra.
The New York Court, like the North Carolina Supreme Court, went beyond the specific limited definition found in the applicable endorsement. The implied conclusion was there drawn, too, that, when a vehicle is operated without permission, the policy which has been issued on that vehicle is inapplicable. It was said at nisi prius: Upon the uncontroverted proof contained in the present record, the court finds as a fact that at the time of the accident Schellhorn’s automobile was operated by O’Sullivan without the consent and permission of Schellhorn. On the basis of this determination, the court holds that the Schellhorn automobile was an Uninsured Automobile within the definition thereof contained in the Endorsement, and under the terms of the policy.
It appears to me that the rationale of the Buck and Travelers Indemnity Co. cases, supra, and the implications thereof, are reasonable, practical and clearly lead to the conservation of the resources of both court and litigant. Thus, it was my view at the trial that, notwithstanding the specific definitions to be found in the statutes and the endorsement, the phrase ‘uninsured vehicle’ may properly be understood to be a generic term meaning ‘uninsured as to this injury situation’, and encompassing, in a matter such as the instant one, all the possibilities set forth in the Insurance Law which might result in the propriety of a claim against MVAIC.
This, indeed, appears to me to have been the though of the majority of the Appellate Division, Fourth Department, in McCarthy v. MVAIC, 16 A.D.2d 35, 224 N.Y.S.2d 909, aff’d 12 N.Y.2d 922, 238 N.Y.S.2d 101, 188 N.E.2d 405. There, the claimant was unsuccessful because, in essence, her injuries had been caused by an intentional assault carried out by means of a motor vehicle; and this was held not to be an ‘accident’ within the terms of the coverage of the policy or the endorsement. I say that the point which I have just discussed is implicit in the opinion of the majority because the court says, at 16 A.D.2d 35, 40, 41, 224 N.Y.S.2d 909, 915:
A disclaimer or denial of liability by an insurance company may place the automobile in the position of an uninsured automobile, within the meaning of the MVAIC endorsement, if, but only if, the effect of the disclaimer or denial is to deprive the injured person of the protection afforded by a standard automobile liability insurance policy. As used in the MVAIC Law, the term ‘disclaimer or denial of liability’ means a repudiation of liability ‘because of some act or omission of the person or persons liable or alleged to be liable. This refers to an act or omission by the insured automobile owner in his relationship to his insurance company, constituting a breach of the conditions of the policy. There was no denial or disclaimer on any such ground here.