Country Wide Insurance v. Dumawal

200 A.D.2d 353, 606 N.Y.S.2d 174, 1994 N.Y. App. Div. LEXIS 25

Opinion

—Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered September 11, 1992, denying a petition for permanent stay of arbitration, unanimously reversed, on the law, and the petition is granted, without costs.

Respondent purchased a policy of automobile insurance from petitioner with liability limits of $100,000/300,000 for bodily injury, $25,000 property damage, and $10,000/20,000 uninsured motorist coverage. After an accident with another vehicle that was minimally insured, respondent settled with that vehicle’s insurer for the $10,000 limit of that policy, and then served a demand upon petitioner for arbitration of an underinsured motorist claim in the amount of $100,000.

Uninsured motorist coverage (i.e., for bodily injury or death caused by an uninsured vehicle) is mandatory in this State (Insurance Law § 3420 [f] [1]), whereas additional underinsured motorist coverage (referred to in the statute as "supplementary uninsured motorists insurance for bodily injury”) is available only "at the option of the insured” (§ 3420 [f] [2]). Where the insured fails to purchase such optional insurance, the coverage is not available (Matter of Liberty Mut. Ins. Co. v Annunziato, 187 AD2d 429). The declaration page of respondent’s policy indicates the statutory minimum uninsured motorist coverage ($10,000/20,000), with no indication of a supplementary endorsement for additional underinsured motorist coverage. That omission is conclusive (Matter of Liberty Mut. Ins. Co. v Alberto, 186 AD2d 658), except where proof is adduced that the insured paid for such additional coverage, or that it was mistakenly omitted from the policy (Matter of Empire Ins. Co. v Vitucci, 192 AD2d 484). This record is devoid of any such evidence. The petition for permanent stay of arbitration should have been granted. Concur — Ellerin, J. P., Wallach, Kupferman and Rubin, JJ.