Soto v. State Farm Insurance — 195 A.D.2d 992

Majority

p. 992

Ilde A. Soto, Individually and as Administratrix of the Estate of Nelson Rivera, Deceased, et al., Appellants, v State Farm Insurance Company, Respondent.

[600 NYS2d 407]

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint in this action alleging defendant’s bad faith in refusing to settle the underlying tort action within the policy limits. It is undisputed that plaintiffs have been paid the full amount of the compensatory damages awarded to them in the underlying tort action. They are not entitled, as assignees of the insured and the operator of the insured’s motor vehicle, to recover from defendant the unpaid punitive damages award assessed against the operator in the underlying tort action because " ([t]he record is devoid of any evidence that the insurer acted with malice or intent to harm the insured’ ” (DiBlasi v Aetna Life & Cas. Ins. Co., 147 AD2d 93 , 100, quoting Kulak v Nationwide Mut. Ins. Co., 47 AD2d 418 , 421, revd on other grounds 40 NY2d 140 ; see also, Reifenstein v Allstate Ins. Co., 92 AD2d 715 , 716-717; Catalogue Serv. v Insurance Co., 74 AD2d 837 , 838).

p. 993

Furthermore, plaintiffs are not entitled to recover the unpaid punitive damages award because punitive damages are not insurable, and therefore could not have been within the contemplation of the parties at the time the contract for automobile liability insurance was made (see, Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392 , 400; see also, Kenford Co. v County of Erie, 73 NY2d 312 , 319-322).

In view of our determination, we do not address the remaining contention advanced by defendant. (Appeal from Judgment of Supreme Court, Erie County, Gorski, J.—Dismiss Complaint.) Present—Denman, P. J., Balio, Lawton, Fallon and Davis, JJ.

Cases cited

DiBlasi v. Aetna Life & Casualty Insurance 147 AD2d 93 N.Y. App. Div. 1989-05-22 at 100 p. 992
Kulak v. Nationwide Mutual Insurance 47 AD2d 418 N.Y. App. Div. 1975-04-23 at 421 p. 992
Kulak v. Nationwide Mutual Insurance 40 NY2d 140 N.Y. 1976-06-15 p. 992
Reifenstein v. Allstate Insurance 92 AD2d 715 N.Y. App. Div. 1983-02-28 at 716-717 p. 992
Catalogue Service of Westchester, Inc. v. Insurance of North America 74 AD2d 837 N.Y. App. Div. 1980-03-10 at 838 p. 992
Public Service Mutual Insurance v. Goldfarb 53 NY2d 392 N.Y. 1981-07-07 at 400 p. 993
Kenford Co. v. County of Erie 73 NY2d 312 N.Y. 1989-02-21 at 319-322 p. 993