Dudley v. Allstate Insurance

281 A.D.2d 941, 722 N.Y.S.2d 448, 2001 N.Y. App. Div. LEXIS 2702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2001
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking a judgment declaring that she is entitled to receive $100,000 as the limits of coverage under the supplementary uninsured motorists (SUM) endorsement of her decedent’s automobile insurance policy with defendant, Allstate Insurance Company (Allstate). Supreme Court properly awarded plaintiff judgment in the amount of $50,000, thereby granting Allstate an offset for a payment of $50,000 previously made to plaintiff by Public Service Mutual Insurance Company (Public Service), representing the limits of coverage under the uninsured motorists endorsement of decedent’s policy with Public Service. Condition 8 of the SUM coverage of the Allstate policy provides, in a form prescribed by the applicable regulation (see, 11 NYCRR 60-2.3 [f]): “Priority of Coverage. If an insured is entitled to uninsured motorists coverage or supplementary uninsured motorists coverage under more than one policy, the maximum amount such insured may recover shall not exceed the highest limit of such coverage for any one vehicle under any one policy.” The condition thus limits plaintiffs potential recovery to $100,000. Condition 8 further provides that the coverage available under the “lower priority policy” issued by Allstate “applies only to the extent that it exceeds the coverage” provided by the “higher priority policy” issued by Public Service. Thus, Allstate is entitled to an offset for the $50,000 paid by Public Service (see generally, Matter of State Farm Mut. Auto. Ins. Co. [Hill], 213 AD2d 976, 977, appeal dismissed 86 NY2d 779). (Appeal from Judgment of Supreme Court, Erie County, Ma-honey, J. — Declaratory Judgment.) Present — Hayes, J. P., Wisner, Scudder, Kehoe and Burns, JJ.