WEIERHEISER v. HERMITAGE INSURANCE COMPANY (2005)

Plaintiff appeals from a judgment granting the motion of defendants Hermitage Insurance Company (Hermitage) and Allegany County Federation of Snowmobilers, Inc. (ACFS) for summary judgment declaring that Hermitage has no duty to defend or indemnify Kenneth C. Frazier (defendant) in an underlying personal injury action.   On December 17, 1999, plaintiff was snowmobiling with defendant and another individual on land owned by defendant's grandfather.   Plaintiff sustained injuries when he fell off his snowmobile and was struck by the snowmobile operated by defendant.   At the time of the accident, defendant was a member of ACFS. Hermitage issued a commercial general liability policy to ACFS. Hermitage subsequently disclaimed coverage under an exclusion in the policy for claims or suits brought by one member of ACFS against another.   Plaintiff thereafter commenced this action against Hermitage seeking a judgment declaring, inter alia, that the disclaimer was improper.

Hermitage previously moved to dismiss the declaratory judgment action on the ground that plaintiff lacked standing, and the motion was denied.   As a nonfinal order necessarily affecting the final judgment, Supreme Court's order denying the motion is brought up for review by this appeal from the final judgment (see CPLR 5501[a][1] ).   We agree with plaintiff that he lacked standing to bring a declaratory judgment action against Hermitage because he has not obtained a judgment against Hermitage's insured (see Insurance Law § 3420;  Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 354-355, 787 N.Y.S.2d 211, 820 N.E.2d 855).   Although decided in November 2004, Lang does not establish a new principle of law and thus must be applied retroactively (see Gurnee v. Aetna Life & Cas. Co., 55 N.Y.2d 184, 192, 448 N.Y.S.2d 145, 433 N.E.2d 128, rearg. denied 56 N.Y.2d 567, 450 N.Y.S.2d 184, 435 N.E.2d 401, cert. denied 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 79).   Consequently, we reverse the judgment and dismiss the complaint.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the complaint is dismissed.

MEMORANDUM: