| Carlson v American Intl. Group, Inc. |
| 2015 NY Slip Op 05816 [130 AD3d 1477] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Michael J. Carlson, Sr., Individually and asAdministrator of the Estate of Claudia D'Agostino Carlson, Deceased, and as Assigneeof William Porter, Respondent, v American International Group, Inc., et al.,Defendants, and American Alternative Insurance Co.,Appellant. |
Rubin, Fiorella & Friedman LLP, New York City (Paul Kovner of counsel), fordefendant-appellant.
Brown Chiari LLP, Lancaster (Edward J. Markarian of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III,J.), entered December 4, 2012. The order, insofar as appealed from, denied the crossmotion of defendant American Alternative Insurance Co. to dismiss the first cause ofaction against it.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law without costs, the cross motion is granted in part, and the first cause of actionagainst defendant American Alternative Insurance Co. is dismissed.
Memorandum: Plaintiff commenced this action pursuant to Insurance Law§ 3420 (a) (2) to collect on certain insurance policies after a secondamended judgment against MVP Delivery and Logistics, Inc. (MVP) and William Porterwas entered upon a jury verdict (see Carlson v Porter [appeal No. 2], 53 AD3d1129 [2008], lv denied 11 NY3d 708 [2008]). Defendant American AlternativeInsurance Co. (AAIC) issued a commercial umbrella policy to Airborne, Inc. and laterchanged the named insured to DHL Express, Risk Management. AAIC cross-moved todismiss, inter alia, the first cause of action of the complaint against it, which alleged thatAAIC was responsible to plaintiff for payment of the judgment pursuant to InsuranceLaw § 3420 (a) (2) and (b).
Supreme Court erred in denying that part of the cross motion. "[T]he right to sue atortfeasor's insurance company to satisfy a judgment obtained against the tortfeasor"exists only pursuant to Insurance Law § 3420 (Lang v Hanover Ins. Co., 3NY3d 350, 352 [2004]). Here, plaintiff may not recover against AAIC pursuant tosection 3420 (a) (2) because the policy was not "issued or delivered in this state"(id.). The parties and the court have improperly conflated the phrase "issued ordelivered" with "issued for delivery," which was used in the former version of InsuranceLaw § 3420 (d), and therefore the definition of "issued for delivery" is notrelevant here (see Preserver Ins.Co. v Ryba, 10 NY3d 635, 642 [2008]). The policy here was issued in NewJersey and delivered in Seattle, Washington, and then in Florida. It was not issued ordelivered in New York, and therefore the first cause of action of the complaint againstAAIC must be dismissed (cf. American Continental Props. v National Union Fire Ins.Co. of Pittsburgh, 200 AD2d 443, 446-447 [1994]).
Contrary to plaintiff's alternative contention (see Parochial Bus Sys. v Board ofEduc. of City of N.Y., 60 NY2d 539, 545-546 [1983]), he may not seek payment ofthe judgment against AAIC pursuant to the MCS-90 endorsement. Thatfederally-mandated endorsement provides, inter alia, that "the insurer . . .agrees to pay . . . any final judgment recovered against the insured" (49CFR 387.15; see Pierre v Providence Washington Ins. Co., 99 NY2d 222,225-226, 228 [2002]). In Pierre, the Court held that any entity meeting theinsurer's definition of an "insured" under the policy qualified as an "insured" under theMCS-90 endorsement (id. at 230-231). After that decision was rendered, theFederal Motor Carrier Safety Administration (FMCSA), which regulates the interstatetrucking industry, defined the term "insured" on the MCS-90 endorsement as the namedinsured only (see 70 Fed Reg 58065-58066 [2005]). Insurance companies hadsought regulatory guidance from FMCSA in response to federal and state courtdecisions, including Pierre, regarding the definition of the term "insured" as usedin the MCS-90 form (see 70 Fed Reg 58065, 58066 [2005]). FMCSA stated thatform MCS-90 was "not intended, and do[es] not purport, to require insurance companiesor sureties to satisfy a judgment against any party other than the motor carrier named inthe endorsement or its fiduciary" (id.). It is well settled that "[a]n agency'sinterpretation of its own regulation 'is entitled to deference if that interpretation is notirrational or unreasonable' " (Matter of IG Second Generation Partners L.P. v New York StateDiv. of Hous. & Community Renewal, Off. of Rent Admin., 10 NY3d 474,481 [2008]; see Matter of Brown v Wing, 93 NY2d 517, 524 [1999]; Matterof Rodriguez v Perales, 86 NY2d 361, 367 [1995]). We give such deference toFMSCA's interpretation of "insured" on the MCS-90 form, and we conclude that plaintiffcannot seek payment of the judgment against AAIC on behalf of either MVP or Porter,neither of whom are named insureds on the AAIC policy (see Armstrong v UnitedStates Fire Ins. Co., 606 F Supp 2d 794, 825-826 [2009]). Present—Centra,J.P., Carni, Lindley and DeJoseph, JJ.