Progressive Insurance v. Dillon

68 A.D.3d 448, 889 N.Y.2d 583

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2009
• Status: Published

Opinion

The court correctly declined to address respondents’ other arguments pending a determination of the issue of underinsured motorist coverage, since estoppel cannot be used to create coverage where none exists, regardless of whether the insurance company timely issued its disclaimer (Wausau Ins. Cos. v Feldman, 213 AD2d 179, 180 [1995]). We modify only to redefine the framed issue as indicated. We reject respondents’ attempts to liken the court’s previous orders to a judicial determination that coverage existed. There is no other basis in the current record for finding that coverage existed.

We have considered respondents’ remaining contentions and find them unavailing. Concur — Saxe, J.P., Friedman, Acosta, Renwick and Abdus-Salaam, JJ.