Defendant, Jacques A. Baker appealed from a decision in the lower court which struck some of the defendants affirmative defenses. A car driven by a man claiming to be Jacques A. Baker struck the plaintiffs vehicle in the rear. The car that struck the plaintiffs vehicle was covered by an insurance policy issued to Jacques A. Baker. Baker alleged that he did not own or operate the vehicle involved in the accident and was a victim of identity theft in which someone stole documents to register the vehicle under his name. The lower court granted the plaintiffs motions to dismiss the affirmative defenses that Baker neither owned nor operated the car in question based on the public policy that State Farm was required to defend the action on the merits. This court reversed the lower courts decision noting that the plaintiffs did not offer evidence to refute Bakers statements regarding his lack of ownership and operation of the vehicle in question. The court found that there was an issue of fact regarding the ownership of operation of the vehicle, and thus the affirmative defenses should not be dismissed. Furthermore, the court found that although under the common law an insurance carrier may cancel a policy if the application was fraudulent, here the application was done through identity theft and thus cannot be retroactively cancelled, in effect leaving Baker unable to contest his liability.

Court: Supreme Court, Appellate Division, Second Department, New York

Date of Decision: December 1, 2003

Keyword: Identity Theft