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RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT).

The Second Department determined Supreme Court correctly ordered a framed issue hearing on the issue whether the injury to plaintiff bicyclist was caused by an “accident” or “intentional conduct” within the meaning of Article 52 of the Insurance Law. Plaintiff got into an argument with a driver and was then struck by the driver’s car. The driver’s identity is not known so plaintiff sought recovery from the Motor Vehicle Accident Indemnification Corporation (MVAIC). The Second Department held that the issue was not controlled by the recent Court of Appeals decision which found that an intentional act by a driver could be seen as an “accident” from the perspective of the injured person. In that Court of Appeals case (State Farm Mut Auto Ins Co v Langan, 16 NY3d 349) the injured person was seeking recovery from the insurer under the injured person’s own policy. Here the plaintiff was seeking recovery from the MVAIC and there can be no recovery from the MVAIC for injury resulting from intentional conduct:

Article 52 of the Insurance Law (“motor vehicle accident indemnification act”) seeks to provide “for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by” vehicles that, for a variety of reasons, are not covered by insurance (Insurance Law § 5201[b]). Article 52 does not, however, cover incidents that are the result of intentional conduct by a tortfeasor, because those incidents are not caused “by accident” … . …

The Court of Appeals [in Langan] held that where recovery was sought from the insurer under the insured’s own policy, the determination of whether the incident constituted an “accident” was to be viewed from the perspective of the innocent insured, rather than of the tortfeasor: “the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured’s point of view” … . The Court distinguished McCarthy v Motor Veh. Acc. Indem. Corp. (16 AD2d at 41), where recovery was sought from a state fund administered by the MVAIC… . Here, as in McCarthy, the petitioner seeks to recover from the state fund administered by the MVAIC, and not from an insurer under an insurance policy as in Langan. Castillo v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 03502, Second Dept 5-16-18

​INSURANCE LAW (RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION  (RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/ACCIDENT (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/INTENTIONAL CONDUCT  (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))/BICYCLISTS (TRAFFIC ACCIDENTS, INSURANCE LAW, RECOVERY FROM THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION FOR INJURY BY AN UNKNOWN DRIVER DEPENDS ON WHETHER THE INJURY IS THE RESULT OF AN ACCIDENT OR INTENTIONAL CONDUCT, NO RECOVERY FOR INJURY RESULTING FROM INTENTIONAL CONDUCT (SECOND DEPT))

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