        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

600
CA 14-01957
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


KEMPER INDEPENDENCE INSURANCE COMPANY,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LENORE ELLIS, AS ADMINISTRATRIX OF THE
ESTATE OF CHRISTOPHER SPACK, DECEASED,
DEFENDANT-APPELLANT-RESPONDENT,
WILLIAM L. LEVEA, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


BOTTAR LEONE, PLLC, SYRACUSE (ADAM P. MASTROLEO OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

HURWITZ & FINE, P.C., BUFFALO (STEVEN E. PEIPER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered May 30, 2014. The
order granted that part of the cross motion of defendant William L.
LeVea for summary judgment with respect to plaintiff’s obligation to
defend LeVea and otherwise denied the cross motion, and denied the
motion and cross motion of defendant Lenore Ellis, as Administratix of
the Estate of Christopher Spack, deceased, and plaintiff,
respectively, for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting in part the motion of
defendant Lenore Ellis, as administratrix of the estate of Christopher
Spack, deceased, and by granting judgment in her favor and in favor of
defendant William L. LeVea as follows:

          It is ADJUDGED and DECLARED that plaintiff is obligated
     to defend defendant William L. LeVea in the underlying
     action,

and as modified the order is affirmed without costs.

     Memorandum: Defendant Lenore Ellis, as administratix of the
estate of Christopher Spack, deceased, commenced a wrongful death
action against defendant William L. LeVea. LeVea, while intoxicated,
struck decedent’s vehicle from behind, which caused decedent to
collide with an oncoming vehicle, resulting in his death. LeVea
pleaded guilty to, inter alia, aggravated vehicular homicide (Penal
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Law § 125.14 [5]) and driving while intoxicated (Vehicle and Traffic
Law § 1192 [2]). In the wrongful death action, Ellis alleged that
LeVea acted negligently in rear-ending decedent’s vehicle.

     At the time of the incident, LeVea was insured under an
automobile policy issued by plaintiff. The policy provided that
plaintiff would “pay damages for ‘bodily injury’ or ‘property damage’
for which any ‘insured’ becomes legally responsible because of an auto
accident.” The policy excluded coverage where the insured
“intentionally causes ‘bodily injury’ or ‘property damage.’ ”
Plaintiff commenced this action seeking a declaration that it was not
required to defend or indemnify LeVea because there was no “accident”
but, rather, LeVea intentionally caused decedent’s death. The parties
thereafter moved and cross-moved for summary judgment. Ellis asserted
in support of her motion that plaintiff was required to defend and
indemnify LeVea, LeVea asserted in support of his cross motion that
plaintiff, inter alia, has a duty to defend him, and plaintiff cross-
moved for summary judgment seeking a declaration that it had no duty
to defend or indemnify LeVea. Supreme Court granted LeVea’s cross
motion with respect to plaintiff’s obligation to defend LeVea, and
otherwise denied the cross motions and motion. Ellis now appeals and
plaintiff cross-appeals. Although the court properly granted LeVea’s
cross motion in part, the court should have granted that same relief
sought by Ellis in her motion. In addition, we note that the court
failed to declare the rights of the parties in connection with the
duty to defend (see Seneca Nation of Indians v State of New York, 89
AD3d 1536, 1538, lv denied 18 NY3d 808). We therefore modify the
order accordingly.

     Initially, we agree with Ellis that plaintiff failed to provide a
foundation for the 911 tape of the decedent prior to the fatal
collision (see generally People v Ely, 68 NY2d 520, 527), and we
therefore do not consider that evidence because it does not constitute
competent evidence in admissible form (see Bergstrom v McChesney, 92
AD3d 1125, 1126-1127).

     “In deciding whether a loss is the result of an accident, it must
be determined, from the point of view of the insured, whether the loss
was unexpected, unusual and unforeseen” (Allegany Co-op Ins. Co. v
Kohorst, 254 AD2d 744, 744; see Massa v Nationwide Mut. Fire Ins. Co.,
74 AD3d 1661, 1662-1663). We must look to the allegations of the
complaint in the underlying action, but may also consider extrinsic
facts (see Jubin v St. Paul Fire & Mar. Ins. Co., 236 AD2d 712, 713).

     Insurable “ ‘[a]ccidental results can flow from intentional
acts’ ” (General Acc. Ins. Co. v Zazynski, 229 AD2d 920, 921; see
Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293; Allegany Co-op Ins.
Co., 254 AD2d at 744). On the other hand, “when the damages alleged
in the [underlying] complaint are the intended result which flows
directly and immediately from [the insured’s] intentional act, . . .
there is no accident, and therefore, no coverage” (Village of
Springville v Reynolds, 61 AD3d 1353, 1354 [internal quotation marks
omitted]). “[M]ore than a causal connection between the intentional
act and the resultant harm is required to prove that the harm was
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                                                         CA 14-01957

intended” (Allstate Ins. Co. v Mugavero, 79 NY2d 153, 160). The
exclusion for an intentional injury, however, will apply where the
injuries are “ ‘inherent in the nature’ of the wrongful act” (Slayko,
98 NY2d at 293; see Allstate Ins. Co., 79 NY2d at 161; Hereford Ins.
Co. v Segal, 40 AD3d 816, 818; Progressive N. Ins. Co. v Rafferty, 17
AD3d 888, 889).

     In support of its cross motion, plaintiff submitted the
statements and depositions of various witnesses who observed LeVea
strike the back of decedent’s vehicle several times before the final
strike that caused decedent to lose control of his vehicle and collide
with an oncoming vehicle. Certainly an ordinary person would not
construe this as an “accident” in any sense (see Christodoulides v
First Unum Life Ins. Co., 96 AD3d 1603, 1605). This evidence,
considered by itself, would support the conclusion that decedent’s
death was inherent in the nature of LeVea’s conduct in repeatedly
ramming decedent’s vehicle while they were traveling at high speeds
(see Progressive N. Ins. Co., 17 AD3d at 889; Westchester Med. Ctr. v
Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 927-928; Allstate Ins.
Co. v Bostic, 228 AD2d 628, 628-629).

     Nevertheless, plaintiff also submitted the deposition testimony
of LeVea in support of its cross motion. LeVea, who had no
recollection of the accident immediately after it occurred or at the
time of his Alford plea, testified at his deposition that his dog
jumped into his lap while he was driving and, when he took his hands
off the steering wheel to move the dog, he collided with the back of
decedent’s stopped vehicle. LeVea claimed that decedent then drove
down the road, turned a corner onto route 370, and hit a truck head-
on. LeVea further testified that he did not intentionally strike
decedent’s vehicle. We conclude that part of LeVea’s testimony
concerning his description of the event, i.e., that he did not strike
decedent’s vehicle on route 370, is completely contradicted by the
evidence in the record and is incredible as a matter of law (see
Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 770-771).
While we disregard that part of his testimony, we further conclude
that the other parts of his testimony, i.e., that he was distracted by
his dog and did not intentionally strike decedent’s vehicle, must be
accepted as true for purposes of this motion for summary judgment (see
Rizk v Cohen, 73 NY2d 98, 103).

     Plaintiff contends that we should disregard LeVea’s testimony
because he is collaterally estopped from denying an intent to injure
decedent. We reject that contention. LeVea pleaded guilty to a crime
that alleged that he acted recklessly; the intent to cause injury to
decedent was not an element of the crime (see Penal Law § 125.14 [5];
Allegany Co-op Ins. Co., 254 AD2d at 744). In addition, LeVea did not
make any factual admissions regarding the incident during the Alford
plea. We therefore conclude that LeVea’s testimony raised a question
of fact, precluding summary judgment on the issue of plaintiff’s duty
to indemnify LeVea (see General Acc. Ins. Co., 229 AD2d at 921; Aetna
Cas. & Sur. Co. v Gigante, 229 AD2d 975, 976). As noted, however, the
court properly granted that part of LeVea’s cross motion and should
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have granted that part of Ellis’s motion with respect to plaintiff’s
duty to defend LeVea. An insurer must “provide a defense unless it
can ‘demonstrate that the allegations of the complaint cast that
pleading solely and entirely within the policy exclusions, and,
further, that the allegations, in toto, are subject to no other
interpretation’ ” (Allstate Ins. Co., 79 NY2d at 159; see Pennsylvania
Millers Mut. Ins. Co., 256 AD2d at 770). Here, the underlying
wrongful death action alleged negligence, not any intentional conduct
by LeVea.

     Finally, we reject Ellis’s contention that plaintiff must
indemnify LeVea because LeVea was too intoxicated to form the intent
to injure decedent as a matter of law. We note that there are cases
where the intentional injury exclusion in a policy is applied even
where the insured had been drinking (see Peters v State Farm Fire &
Cas. Co., 306 AD2d 817, 817-818, mod on other grounds 100 NY2d 634;
Pennsylvania Millers Mut. Ins. Co., 256 AD2d at 771).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
