FAFINSKI v. RELIANCE INSURANCE COMPANY, 65 N.Y.2d 990 (1985)

484 N.E.2d 662, 494 N.Y.S.2d 299

DANIEL R. FAFINSKI, Appellant, v. RELIANCE INSURANCE COMPANY, Respondent.

Court of Appeals of the State of New York.
Decided September 5, 1985

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Willard W. Cass, Jr., J.

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Richard V. Slater for appellant.

T. Alan Brown for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice Stewart F. Hancock, Jr., and judgment absolute granted to defendant, without costs, in accordance with the stipulation of the parties. We add only that there is nothing in the language of the insurance policy to limit the exclusion of benefits to only those individuals actually convicted under Vehicle and Traffic Law § 1192. The policy exclusion, which tracks the governing statutory provision (Insurance Law § 5103 [b] [2], formerly § 672 [2] [b]), provides that an insurer may exclude from coverage a person injured “as a result of operating a motor vehicle while in an intoxicated condition” within the meaning of section 1192 of the New York Vehicle and Traffic Law. Plaintiff, who had a blood alcohol content of .276% when tested shortly after the accident, asserts that a conviction under section 1192 is required by the subject exclusionary clause. His position would render the exclusion of coverage for intoxicated drivers inapplicable for those drivers who, by virtue of having blood alcohol content in excess of .10%, have committed a per se violation of Vehicle and Traffic Law §1192 (2), but who, for one reason or another, have not been charged, prosecuted or convicted under section 1192. Such an anomalous result contravenes the legislative purposes of denying coverage for losses resulting from violations of the law (see,
Insurance Law § 5103 [b]) and of keeping premiums low (see generally, Montgomery v Daniels, 38 N.Y.2d 41, 62).

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Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, without costs, and judgment absolute granted to defendant in a memorandum.