Antonio Garcia, Appellant,v.Government Employees Insurance Company, Respondent.BriefN.Y.Dec 7, 2017To be Argued by: RICHARD A. FOGEL (Time Requested: 15 Minutes) Sfeui |fnrk Supreme Court Appellate dtiristim- Second department ♦o Docket No.: 2015-05471 ANTONIO GARCIA, Plaintijf-Respondent, -against- GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LAW OFFICES OF RICHARD A. FOGEL, P.C. Attorneys for Defendant-Appellant 389 Cedar Avenue Islip, New York 11751 (516) 721-7161 Nassau County Clerk’s Index No. 4844/13 TABLE OF CONTENTS ARGUMENT 4 Point I: The Opposition Relies Upon The Overruled Dissenting Opinion Of The Lower Court In First Savings Rather Than Addressing The Controlling Court Of Appeals Decision. .4 Point II: Where Is The Witness Or Other Admissible Evidence That Plaintiff Relies Upon To State There Is A Material Dispute Of Fact Over Whether There Was $1 Million Umbrella Policy Which Is The Only Insurance Policy Alleged In The Pleadings? .5 CONCLUSION. 18 2 TABLE OF AUTHORITIES Cases Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), 13 Appleby v. Chicago Title Ins. Co., 80 A.D.3d 546, 914 N.Y.S.2d 257 (2d Dep’t 2011) 6 Dune Deck Owners Corp v. JJ & P Assoc. Corp., 71 A.D.3d 1075, 1077, 899 N.Y.S.2d 262, 263-64 (2nd Dep’t 2010) 14, 16-17 First Savings and LoanAss’n of Jersey City, N.J. v. American Home Ass. Co., 29 N.Y.2d 297, 327 N.Y.S2d 609 (1971) .4-5 In re Ideal Ins. Co. 231 A.D.2d 596, 59 N.Y.S.2d 273 (1st Dep’t 1997)....6-7 Mid-State Industries, Ltd. v. State Supreme Court, 117 A.D.3d 1255, 986 N.Y.S.2d 637 (3d Dep’t 2014). .. .7 Superior Ice Rink, Inc. v. Nescon Contracting Corp., 52 A.D.3d 688, 861 N.Y.S.2d 362 (2d Dep’t 2008).. .6 Zuckerman v. City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d .595 (1980) ........... 13, 15 Statutes CPLR3212 18 3 Argument POINT I THE OPPOSITION RELIES UPON THE OVERRULED DISSENTING OPINION OF THE LOWER COURT IN FIRST SAVINGS RATHER THAN ADDRESSING THE CONTROLLING COURT OF APPEALS DECISION In this case, the lower court misstated the law by ignoring the controlling Court of Appeals precedent cited to it (See R at 413-414), First Savings and Loan Ass’n of Jersey City, N.J. v. American Home Ass. Co., 29 N.Y.2d 297, 327 N.Y.S2d 609 (1971), which held that indemnity limits are not severable with facts that are very similar to this case. The opposition cannot distinguish that holding so instead it spends three pages deep in its brief relying on the dissent of the First Department ruling in First Savings which dissent was not only overruled by the First Department but also by the Court of Appeals which affirmed the First Department majority ruling that the indemnity limits are not severable. The facts of the instant case are even more compelling to deny severability than First Savings, because here the liability limits of the one year umbrella insurance contract were not changed by an endorsement as in First Savings. Here the one year umbrella contract was $2 million in indemnity limits from its inception on October 10, 2005 and the premium charged for that one year policy remained the same from the inception. 4 As the Court of Appeals explained in First Savings, and discussed at detail in appellant’s brief, the one year umbrella policy is not a divisible contract. The lower court ruling would turn New York contract and insurance law on its head and create chaos as insurers would have to unilaterally change policy limits depending on payments made by the insured rather than the material terms of the contract. In all likelihood, the insurance industry would react by requiring all premium payments up front. POINT n Where Is The Witness or Other Admissible Evidence That Plaintiff Relies Upon TojState There Is A Material Dispute Of Fact Over Whether There Was $1 Million Umbrella Policy Which Is The Only Insurance Policy Alleged In The Pleadings? A. Without A Finding Of An Ambiguity In The Contract, Extrinsic Evidence Is Inadmissible And Irrelevant The allegation in the complaint pertaining to a one year umbrella insurance policy is that a “$1 million” umbrella policy was wrongfully cancelled (R at 36-39, paragraphs 7, 8, 23). Since there is no such policy, no witnesses to support such an allegation, and no admissible evidence at all to support such an allegation, the action must be dismissed. There are only two factual witnesses in this case: (1) the insured, Ms. Jeanne Rakowski; and, (2) GEICO’s Umbrella Insurance Program Manager Rich Pitts. Neither agreed in deposition testimony with plaintiff’s allegation there was a $1 million one 5 year umbrella policy at or about the time of the accident. Both of them testified in complete agreement that the only umbrella policy that was in effect after October 10, 2005 and before the accident occurred on May 19, 2006 was a one year $2 million umbrella policy (R at 50-59). Both witnesses further agreed that GEICO terminated the one year $2 million umbrella policy for failure of Ms. Rakowski to pay the full policy premium. Neither witness testified that there was anything ambiguous about the two material terms at issue: (a) the $2 million indemnity limit (R at 50) or (b) the $505 total premium charged for the one year $2 million umbrella policy (R at 52). Indeed, there is no other reasonable meaning of these two written contract terms. The insured is not confused, GEICO’s not confused. The lower court did not find any ambiguity in these two material terms. Without any evidence of an ambiguity and consequent finding of an ambiguity, GEICO respectfully submits that this Court is compelled as a matter of law to interpret these two material contractual terms at issue according to their plain meaning within the “four comers” of the contract and the Court may not resort to extrinsic evidence. Appleby v. Chicago Title Ins. Co., 80 A.D.3d 546, 914 N.Y.S.2d 257 (2d Dep’t 2011); Superior Ice Rink, Inc. v. Nescon Contracting Corp., 52 A.D.3d 688, 861 N.Y.S.2d 362 (2d Dep’t 2008); In re Ideal Ins. Co. 231 A.D.2d 596, 59 N.Y.S.2d 273 (1st 6 Dep’t 1997). See also Mid-State Industries, Ltd. v. State Supreme Court, 117 A.D.3d 1255, 986 N.Y.S.2d 637 (3d Dep’t 2014). Where is the witness is that plaintiff relies upon and will call at trial to state there is a material dispute of fact, an ambiguity, over the indemnity limits or the premium of the one year $2 million umbrella policy or that there is a one year $1 million umbrella policy? Where is the witness who testified that there was an ambiguity in the umbrella policy that has anything to do with one cause of action pled by plaintiff? That witness does not exist. B. The Opposition As Well As The Lower Court Opinion Relies On Inadmissible Evidence There is no admissible testimony, no admissible evidence to support plaintiffs argument of a one year $1 million umbrella policy or the lower court’s recitation of that allegation stating it as fact in its decision denying summary judgment to GEICO. Plaintiff’s “dispute of fact” is nothing more than classic conclusionary “wishful thinking” put forward by counsel based upon “fluff’. That is, inadmissible documents and testimony: (a) inadmissible parole and extrinsic evidence - contract negotiations in the annual renewal process in which a one year $1 million policy was proposed at one point and rejected by the insured who counter-proposed a one year $2 million policy as the insured and GEICO testified; 7 (b) irrelevant, extrinsic and therefore inadmissible documents about one year umbrella policies that were in effect in 2003 and 2004 that expired long before the accident in 2006 by their terms. (c) irrelevant, extrinsic and therefore inadmissible documents from GEICO’s internal computer system arising out of the one year $2 million umbrella contract (which one year $2 million policy was not pled by plaintiff), particularly the annual renewal process (parole evidence) leading up to the eventual one year $2 million umbrella policy and the payment of premium for the one year $2 million umbrella policy. In other words, the opposition obfuscates undisputed and unambiguous material facts of a one year $2 million umbrella policy with a total premium of $505 by submitting inadmissible negotiation documents and using misleading jargon in a classic strategy of “muddying the waters”. The opposition apparently succeeded with this strategy in confusing the lower court to state as a matter of fact that there was a one year $1 million umbrella policy in May 2006, a conclusion that both witnesses, the only witnesses in the case, denied. Plaintiffs opposition relies upon lay witness testimony that imprecisely uses legal and industry jargon with such words as “amendments” and “policy documents” when talking about a proposed 8 umbrella insurance contract which jargon suggests that the proposed contract is already effective. The opposition repeatedly refers to “amended policy documents” when in fact the “policy documents” are renewal proposals in August 2005, three months before the actual policy became effective and the “amendments” are actually counter proposals. Indeed, the opposition is so obfuscatory, that it actually admits the insured and GEICO agreed to a one year $2 million umbrella liability insurance contract in the process of arguing that there is a question of fact of whether there is a $2 million or $1 million umbrella contract. See Plaintiffs opp. at 6; R at 302- 03. Nevertheless, neither the insured, Ms. Rakowski, nor GEICO, by Mr. Pitts, expressed any confusion that the umbrella contract that became effective October 10, 2005 had a $2 million indemnity limit and that the premium charged was $505 payable with a minimum of $306 for the first payment. Plaintiff’s opposition further argues that somehow the premium charged by GEICO and the explanation of the premium provided in deposition testimony by GEICO’s witness, Mr. Pitts, ipso facto created a question of fact over the $2 million indemnity limit, but again neither witness expressed any confusion about the $2 million indemnity limit nor the total premium charged for it. Mr. Pitts explained that $199 of the total 9 premium was for the second million dollars in indemnity. With all due respect to the opposition, so what? It does not matter how the premium was calculated. It is irrelevant extrinsic evidence. Mr. Pitts answered a question at a deposition but that' testimony is irrelevant to the issue of whether there was a one year $2 million umbrella policy or a one year $1 million umbrella policy and therefore not admissible. The only allegation pled is that there was a one year $1 million umbrella policy. The fact that plaintiff’s counsel claims to be confused does not create a question of fact nor change material terms of the contract. Both factual witnesses testified that they understood that there was a one year $2 million policy and the premium for it was $505. Where is plaintiffs factual witness that the two terms are ambiguous? Again, it seems we have nothing to base plaintiffs argument upon that is admissible evidence - only wishful thinking based upon obfuscation. The opposition then goes on to extensively discuss GEICO’s internal computer system which is again based upon deposition testimony that is otherwise inadmissible because it is extrinsic evidence and utterly irrelevant. Neither witness disputes that there was a premium of $505 and that it was not paid. What difference does it make what GEICO’s computer system did? It is all obfuscation. 10 GEICO moved for summary judgment because there is no material factual dispute based upon admissible evidence requiring a trial of the substantive allegations of the complaint and the matter must be resolved as a matter of law: a. The underlying auto accident injuring the plaintiff occurred after 12:01 AM on May 19, 2006. Plaintiffs opposition did not dispute this. b. Plaintiff’s opposition also admits that the one year umbrella insurance contract between GEICO and the insured Jeanne Rakowski effective October 10, 2005 (R at 50-59) was terminated pursuant to the terms of the contract at 12:01 A.M. on May 19, 2006 because of the insured’s failure to pay the unambiguous policy premium. R at 304; R at 314, Para. 40. c. Plaintiff’s opposition also admits that the umbrella liability insurance contract between GEICO and the insured Jeanne Rakowski that was terminated at 12:01 AM on May 19, 2006 (R at 50-59) had unambiguous indemnity limits of $2 million, not $1 million. Plaintiff’s opp. at 6. Seed also plaintiff’s admissions at R at 302-303. d. GEICO testified that the umbrella policy (R at 50-59) would have required it to pay up to $2 million had the policy not been terminated and the lower court opposition did not dispute this. 11 Plaintiffs opposition argues there are disputed material facts because counsel says so, but in fact submits no witness testimony and no admissible evidence whatsoever that there was a $1 million umbrella policy that was cancelled before the accident on May 19, 2006. Thus there is no testimony and to support the allegation in the pleading of a $1 million policy or the lower court’s ruling. All the evidence, all of it, says that the umbrella policy that was cancelled before the accident was a $2 million policy. Hence, that fact is not disputed just because plaintiff wishes it to be so. Indeed, plaintiff has repeatedly admitted that the umbrella policy effective October 10, 2005 was a $2 million policy because the insured rejected a proposed $1 million umbrella policy and counter proposed a $2 million policy which counter proposal was accepted by GEICO. See plaintiffs opposition at 6, R at 302- 03. The Notice Of Termination Argument Is Unmeritorious As Well AsC. Irrelevant Abandoning the only claim in the complaint, that an umbrella liability policy for $1 million was “wrongfully” “cancelled”, as it did below in opposition to the moving papers, the respondent improperly attempts to effectively amend the pleadings in a further clear example of “muddying the waters” by raising a series of “ifs” and “maybes” that do not pertain to any $1 million umbrella policy that was pled by plaintiff but only to a $2 million 12 umbrella policy that plaintiff does not even allege exists. These arguments are classic examples of “wishful thinking” to oppose a motion for summary judgment which of course is no opposition at all. “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman, All N.Y.S.2d at 598. See also Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). The opposition argues that GEICO did not submit an affidavit from Ms. Trulow whom GEICO identified in discovery responses as the person most familiar with the mailing procedure of notices of termination. The only allegation is the complaint pertains to a $1 million umbrella policy which was terminated but the only policy that in fact was terminated was a $2 million policy. Accordingly, what exactly is Ms. Trulow supposed to say that is pertinent to the allegations of this case? Further, even assuming, arguendo that plaintiff had pled a claim about a $2 million umbrella policy, what Ms. Trulow is supposed to state in her affidavit that is not merely cumulative of all the evidence GEICO already provided in discovery in terms of documents, proof of mailing and the testimony of Richard Pitts, is left to our imagination. The suggestion of course is that “maybe” the insured did not receive a notice of termination of the $2 million umbrella liability policy. The argument is a red herring: 13 a. Plaintiff did not allege any such issue in the pleadings; b. The insured, Ms. Rakowski, never claimed and did not testify that she did not receive a notice of termination of the $2 million umbrella policy; c. The insured never disputed and still does not dispute that she did not pay the premium owed for the $2 million umbrella policy; d. There is no statute regarding notice of termination of an umbrella policy (unlike auto policies for example) and the contract itself controls. The contract merely requires notice at least fifteen days in advance of termination. The opposition admits that notice was provided several times months in advance of termination. e. Proof that notice was mailed gives rise to a rebuttable presumption that notice was received and that presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Dune Deck Owners Corp v. JJ & P Assoc. Coup., 71 A.D.3d 1075, 1077, 899 N.Y.S.2d 262, 263-64 (2nd Dep’t 2010). In this case, GEICO provided both types of proof and plaintiff has provided nada to rebut this evidence GEICO submitted a great deal of uncontested evidence that the premium was not paid for the $2 million umbrella policy and that a notice of 'M 14 termination was sent. The opposition suggests that even though GEICO produced the invoices, notice of termination and proof of mailing, as well as sworn testimony under cross-examination of the GEICO program manager in charge of umbrella insurance and that plaintiff also took the deposition of the insured Ms. Rakowski who did not dispute notice of termination or that she failed to pay the premium for the policy, and regardless that plaintiff did not request the deposition of Ms. Trulow, the motion for summary judgment was properly denied because GEICO did not provide an affidavit for the person who was in charge of the mailing room when the notice of termination was mailed. GEICO met its burden on the motion for summary judgment and plaintiff produced nothing, no admissible evidence whatsoever, to contradict it. It is plaintiffs burden to rebut the presumption of mailing with contradictory evidence, not GEICO’s. Instead, plaintiff merely demands yet more evidence from GEICO: i.e. an “unsubstantiated” assertion as in Zuckerman. In another example of “Maybe” and “Ifs” pertaining to the unpled assertion that somehow the notice of termination is not effective, the opposition argues that GEICO did not produce one specific email that it no longer has even though it produced a computer log entry that states an email was sent to the insured regarding the termination and Mr. Pitts testified that 15 the computer log shows that such an email was sent. Again, the insured does not and has never contested the notice of termination and that she did not pay the premium owed or anything else asserted by GEICO in its motion. All the evidence which was all produced by GEICO shows that the termination was sent for non-payment of premium. The plaintiff produced nothing, nada, to rebut this evidence or create a question of fact. Instead, the opposition is “you gave me this but I also want this” and until I get both things, you should not get summary judgment because “maybe” that other evidence might show “something”. In sum, the GEICO umbrella liability contract is not an auto policy and therefore auto insurance regulatory statutes are not applicable. There are no statutory requirements specifically stating how mailing of a notice of termination of an umbrella liability insurance contract is to be accomplished. The contract itself controls and that requires notice in writing at least fifteen days in advance. There is no evidence to suggest that the insured did not receive written notice and indeed the insured testified that she does not recall but she probably received it. The Second Department holds that the presumption that notice was mailed and received may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Dune Deck 16 Owners Corp v. JJ & P Assoc. Corp., 71 A.D.3d 1075, 1077, 899 N.Y.S.2d 262, 263-64 (2nd Dep’t 2010). In this case, GEICO provided both types of proof and plaintiff has provided nada to rebut this evidence. 17 CONCLUSION Wherefore, appellant/defendant GEICO respectfully requests that the lower court be reversed, summary judgment be granted to it pursuant to CPLR 3212 and that such other and further relief be granted as the court deems just and proper. Dated: Islip, N.Y. September 15, 2015 Richard A. Fogel, Esq. Law Offices of Richard A. Fogel, P.C. 389 Cedar Avenue Islip, New York 11751-4627 (516) 721-7161 (631) 650-5254 (Fax) rfogel @ rfogellaw.com Counsel for Appellant/Defendant Government Employees Ins. Co. 18 APPELLATE DIVISION - SECOND DEPARTMENT CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 670.10.3(f) that the foregoing reply brief was prepared on a computer using Microsoft Word Type: A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count: The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of services, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3,027. Date: .Islip, New York September 15, 2015 Richard A. Fogel, Esq. Law Offices of Richard A. Fogel, P.C. 389 Cedar Avenue Islip, New York 11751-4627 (516) 721-7161 Attorney for Defendant/Appellant Government Employees Ins. Co.