In re Arbitration between New York Central Mutual Fire Insurance & Smith

Appellate Division of the Supreme Court of New York

In re Arbitration between New York Central Mutual Fire Insurance & Smith

244 A.D.2d 958, 665 N.Y.S.2d 994, 1997 N.Y. App. Div. LEXIS 12354

Appellate Division of the Supreme Court of the State of New York·Decided November 19, 1997·Published

Opinion

—Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in determining that an underinsurance offset provision of respondents’ insurance policy is unenforceable. That provision is enforceable because the policy provides a single, combined liability limit for both uninsurance and underinsurance (see, Matter of Allstate Ins. Co. [Stolarz— N. J. Mfrs. Ins. Co.], 81 NY2d 219, 223-224; cf., Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, affd without opn 119 AD2d 1017, affd 69 NY2d 777 for the reasons [959]*959stated at Special Term). Thus, respondents, who recovered $10,000 from the tortfeasor’s insurer, are entitled to no more than $15,000 in underinsurance coverage from petitioner, not the full $25,000 policy limit (see, Matter of Nationwide Mut. Ins. Co. [Hunley], 210 AD2d 947; see also, Matter of New York Cent. Mut. Fire Ins. Co. [McGill], 244 AD2d 865 [decided herewith]). (Appeal from Order of Supreme Court, Erie County, No-taro, J.—Arbitration.) Present—Denman, P. J., Hayes, Callahan and Fallon, JJ.

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—Order unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in determining that an underinsurance offset provision of respondents’ insurance policy is unenforceable. That provision is enforceable because the policy provides a single, combined liability limit for both uninsurance and underinsurance (see, Matter of Allstate Ins. Co. [Stolarz— N. J. Mfrs. Ins. Co.], 81 NY2d 219, 223-224; cf., Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, affd without opn 119 AD2d 1017, affd 69 NY2d 777 for the reasons [959]*959stated at Special Term). Thus, respondents, who recovered $10,000 from the tortfeasor’s insurer, are entitled to no more than $15,000 in underinsurance coverage from petitioner, not the full $25,000 policy limit (see, Matter of Nationwide Mut. Ins. Co. [Hunley], 210 AD2d 947; see also, Matter of New York Cent. Mut. Fire Ins. Co. [McGill], 244 AD2d 865 [decided herewith]). (Appeal from Order of Supreme Court, Erie County, No-taro, J.—Arbitration.) Present—Denman, P. J., Hayes, Callahan and Fallon, JJ.

In re Arbitration between New York Central Mutual Fire Insurance & Smith, 244 A.D.2d 958, 665 N.Y.S.2d 994, 1997 N.Y. App. Div. LEXIS 12354 (N.Y. Ct. App. 1997).

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244 A.D.2d 958 (In re Arbitration between New York Central Mutual Fire Insurance & Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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