Eddy v. Aetna Casualty & Surety Co.

159 A.D.2d 1005, 552 N.Y.S.2d 470, 1990 N.Y. App. Div. LEXIS 3324

Opinion

Judgment unanimously reversed on the law with costs and judgment entered, in accordance with the following memorandum: Plaintiff was a passenger in a rented car when she was injured as a result of a collision between that car and another vehicle operated by an uninsured motorist. Both the owner of the rented car, Agency Rent-A-Car, a self-insurer, and Aetna, the carrier for the car owned by the driver of the rented car, must provide plaintiff with uninsured motorist protection (see, Insurance Law § 3420 [f] [1]; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818). Both claim to be responsible for only excess coverage, the rental company by virtue of language in the rental agreement and Aetna by virtue of policy language. Supreme Court erred in finding Aetna responsible for primary coverage. Pursuant to condition 6 of the New York automobile accident indemnification endorsement, an endorsement authorized by Insurance Law § 3420 (f) (1) and 11 NYCRR 60.1 (g), plaintiff is entitled to a declaration that Agency Rent-A-Car must provide primary uninsured motorist coverage. (Appeal from judgment of Supreme Court, Monroe County, Curran, J. —^declaratory judgment.) Present — Callahan, J. P., Boomer, Pine, Balio and Lowery, JJ.