Allstate Insurance v. Libow

106 A.D.2d 110, 482 N.Y.S.2d 860, 1984 N.Y. App. Div. LEXIS 21306
Appellate Division of the Supreme Court of the State of New York·Decided December 31, 1984·Published·Cited by 43 cases

Opinion

OPINION OF THE COURT

Boyers, J.

The sole issue for our consideration today is whether subdivision 2-a of former section 167 of the Insurance Law (presently [111] Insurance Law, § 3420, subd [f], par [1]),* which prescribes certain minimum sums of uninsured motorist insurance for bodily injury ($10,000) or wrongful death ($50,000), should be construed as mandating a minimum aggregate insurance coverage of $60,000 where an individual sustains personal injuries arising out of an automobile accident and subsequently dies as a result. Based upon the pertinent statutory provisions, the legislative history, administrative interpretation by the Superintendent of Insurance and the applicable rules of statutory construction, we conclude that the Insurance Law mandates a total minimum insurance coverage for motor vehicle accidents causing personal injuries resulting in death, in the sum of $50,000.

In August, 1981, petitioner Allstate Insurance Company (Allstate) issued respondent’s decedent Eugene Libow (the insured) an automobile liability insurance policy containing the standard uninsured motorist indorsement providing the $10,000/$50,000 minimum coverage required in New York State (see Insurance Law, former § 167, subd 2-a; Insurance Law, § 3420, subd [f], par [1]). The policy was renewed the following year, on or about August 2, 1982, the anniversary date.

Some 20 days thereafter, on August 22, 1982, the insured’s automobile was struck in the rear while stopped at a red light by an unidentified “hit and run” vehicle. As a result, the insured, who was operating his car at the time, sustained severe spinal cord injuries and was rendered a quadriplegic. On or about August 27, 1982, he filed a “notice of intention to make claim” pursuant to the policy issued to him by petitioner Allstate. Tragically, the injured insured died as a result of his injuries on September 21, 1982.

Subsequently, respondent Pearl Libow, as surviving spouse and administratrix of the insured’s estate, served a supplemental and amended notice of intention to make claim and, by demand served in February, 1983, she requested arbitration under the uninsured motorist provision of the Allstate policy. The amount claimed in the demand included $10,000 for conscious pain and suffering and $50,000 for death resulting from the hit-and-run accident, for a total of $60,000. By way of response, on February 14,1983, Allstate commenced the instant proceeding to stay arbitration between the parties on the ground that the policy provided for only $50,000 on account of death, as required by statute. By order dated March 14, 1983, Special [112] Term dismissed the petition holding that “[b]y the express terms of the insurance policy, dispute between the parties as to the amount of damages is to be settled by arbitration”.

Thereafter, Allstate moved to reargue contending that “by statute [Insurance Law, former § 167, subd 2-a] and contract [respondent was] limited to a maximum claim of $50,000 for the injury and death of one person” and that the issue of whether respondent had the right to claim $60,000 on account of both personal injury to the decedent and death was a coverage question which should be determined by the court rather than the arbitrator. Respondent argued in response that the policy provided for arbitration in the event of dispute as to the amount of damages and that subdivision 2-a of former section 167 of the Insurance Law provided payments “not exceeding” $10,000 for bodily injury “and * * * not exceeding” $50,000 for the death of one person in any one accident; since the statute was written in the conjunctive and not in the disjunctive alternative, respondent was entitled to make a claim for both bodily injury to and the death of her husband in the total sum of $60,000. Respondent framed the following issues for the court to decide: (1) whether respondent was entitled to arbitration, and (2) whether subdivision 2-a of former section 167 was framed in the conjunctive or the disjunctive.

By order dated June 14, 1983, Justice Rubin granted reargument, agreed that the issue of the sum respondent might seek constituted a policy coverage question to be determined by the court, found that the recovery limitations of subdivision 2-a of former section 167 of the Insurance Law were not mutually exclusive and thus a claim could be made by respondent on account of both personal injury and death, and directed that the matter proceed to arbitration.

On July 28, 1983, the arbitrator, stating that he was compelled to follow the decision of Special Term awarded respondent $60,000. Subsequently, petitioner paid respondent $50,000 pursuant to a stipulation entered into by the parties on or about October 5, 1983.

On this limited appeal by petitioner, we find that Special Term erred in construing subdivision 2-a of former section 167 of the Insurance Law as permitting a claim on account of both personal injury and death where personal injury is sustained by an individual as a result of a hit-and-run automobile accident and that same individual dies as a result of his injuries. We find that under such circumstances, respondent’s claim is limited to [113] a maximum award of $50,000 and thus modify the order appealed from accordingly.

I

Prior to its amendment, effective December 1, 1979 (L 1979, ch 665, § 11), subdivision 2-a of former section 167 of the Insurance Law provided for payments under the uninsured motorist indorsement of an insured’s policy subject to a “limit of ten thousand dollars exclusive of interest and costs, on account of injury to, or death of, one person, in any one accident” (emphasis added). This statute was amended by chapter 665 of the Laws of 1979, together with various other sections of the Insurance Law and the Vehicle and Traffic Law (e.g., Insurance Law, §§ 610, 619, subd [a]; Vehicle and Traffic Law, § 250, subd 4, par a; § 311, subd 4, par [a]; §§ 333, 335, subd [a]; §§ 341, 345, subd [b], par [3]; § 370, subd 1, par [a]). The purpose of the amendments was to raise the maximum amounts of various statutorily mandated insurance coverage limits for motor vehicle accidents resulting in death. According to the memorandum of the Assembly Rules Committee (NY Legis Ann, 1979, pp 393-394): “[the] bill would increase the minimum mandatory coverages of bodily injury liability insurance from $10,000 per person/$20,000 per accident to $50,000 per person/$100,000 per accident in cases of wrongful death only. Appropriate sections of the Vehicle and Traffic Law and insurance law are amended to reflect the increase from $10,000 per person/$20,000 per accident to $50,000 per person/$100,000 per accident * * * The current limitations were promulgated in 1959. It is clear that the amount of insurance protection that was adequate in 1959 cannot be remotely close to adequate in 1979” (emphasis supplied).

Thus, it is clear that the intent of the Legislature in amending those statutes relating to insurance coverage for motor vehicle accidents resulting in death was to compensate for the inflation occurring between 1959 and 1979 by raising coverage for wrongful death to $50,000 per person and $100,000 per accident (see Lamel, Annual Survey of New York Law, Insurance Law, 32 Syracuse L Rev 369, 381).

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Allstate Insurance v. Libow, 106 A.D.2d 110, 482 N.Y.S.2d 860, 1984 N.Y. App. Div. LEXIS 21306 (N.Y. Ct. App. 1984).

106 A.D.2d 110 (Allstate Insurance v. Libow) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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