| [1] |
Supreme Court2/28/2000
cy limits of the offending driver and whether Amica acted in good faith in its dealings with LeCorre. "'When a party is under a duty to speak, or when his failure to speak is inconsistent with honest dealings and misleads another, then his silence may be deemed to be acquiescence"' (Matter of Aetna Cas. & Sur. Co. v Crown, 181 AD2d 883, 884, quoting More v New York Bowery Fire Ins. Co., 130 NY 537, 545). Furthermore, an insurer has an implied duty to act in good faith in dealing with its insured (see, Jones Lang Wootton USA v LeBoeuf, Lamb, Green & McRae, 243 AD2d 168).
In the matter at bar, at his deposition, Amica's regional vice-president, James M. Lynch, read from a letter he wrote dated January 12, 1989, to one of Amica's claim representatives in which he referred to possible underinsurance coverage exposure pursuant to Amica's policy issued to LeCorre. It also appears from his testimony that in December 1988 and January 1989, at least one of Amica's claims representatives handling the plaintiff's additional Personal Injury Protection claim was aware that there was underinsurance coverage, that LeCorre's injuries were serious, and that the limits of the policy of the other driver were significantly less than Amica's. Thus, in December 1988 and January 1989, Amica was aware that such a claim might be made pursuant to the underinsurance provision of the policy. Yet, one month later, in February 1989, Amica sent only a limited agreement dealing with subrogation regarding the additional "Personal Injury Protection" provision of LeCorre's insurance policy. That agreement, which was signed by LeCorre on February 24, 1989, before the execution of the general release, made no mention of any subrogation issue relating to LeCorre's potential claim for underinsured motorist benefits.
The policy language of the underinsurance rider, as opposed to that of the uninsured motorist protection provision, did not require Amica's written consent prior to settling a claim. Thus, there is a question of fact as to whether Amica's silence on the issue of subrogation regarding the underinsurance claim could have been viewed as consenting to a settlement for the policy limits of the other driver's vehicle, as well as whether Amica was acting in good faith regarding potential claims by LeCorre.
The Supreme Court properly denied those branches of Bijesse's cross motion which were for summary judgment dismissing the complaint and for summary judgment in the second third-party actions on the issues of indemnification and contribution (see generally, Alvarez v Prospect Hosp., 68 NY2d 320). Michael DeMicco, who was the attorney handling the LeCorre matter for Bijesse at the time this matter was settled, admitted that before the delivery of the general release executed by LeCorre, he was aware that Amica had a right of subrogation in this matter. Thus, the fact that the limited subrogation agreement was signed before the execution of the general release raises at least two factual questions concerning whether Bijesse was, or should have been, aware of the subrogation issue as to LeCorre's underinsured motorist claim, and whether it was negligent in failing to obtain a consent from Amica to the settlement of the underlying personal injury action prior to executing the general release.
The parties' remaining contentions are without merit.
O'BRIEN, J.P., RITTER, S. MILLER, and FLORIO, JJ., concur.
|