Summary
In Matter of Eagle Ins. Co. v Silva (147 A.D.2d 641), the appellant had demanded benefits under the underinsured motorists clause and her policy allowed recovery of up to $10,000/$20,000 under that clause.
Summary of this case from Tetteris v. Travelers Ins Co.Opinion
February 21, 1989
Appeal from the Supreme Court, Nassau County (Burstein, J.).
Ordered that the order is affirmed, without costs or disbursements.
On April 20, 1986, the appellant Noemi Silva was hit by a motor vehicle insured by Allstate Insurance Co. (hereinafter Allstate). She commenced an action against the vehicle's owner and settled the action for $10,000, the limit of the Allstate policy. Thereafter Noemi Silva, under the appellant Magdalena Silva's insurance policy with the petitioner, demanded benefits under the "underinsured motorist" clause alleging that the $10,000 she received from Allstate was not sufficient compensation for her injuries. Magdalena Silva's policy with the petitioner allowed recovery of up to $10,000 per person/$20,000 per occurrence under that clause. The petitioner refused to pay any benefits and the appellants demanded arbitration. As a result, the petitioner commenced the instant proceeding to stay arbitration.
Insurance Law § 3420 (f) (2) provides that supplementary uninsurance motorist coverage (commonly known as "underinsurance") shall provide coverage "if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy" (emphasis supplied) (see generally, Matter of United Community Ins. Co. v Mucatel, 127 Misc.2d 1045, affd 119 A.D.2d 1017, affd 69 N.Y.2d 777). Here, since the limits of liability of the other motorist were not less than, but were the same as the limits of the appellant's policy, the other motorist cannot be considered "underinsured" under the statute and the underinsurance coverage does not apply (see, Manfredo v Centennial Ins. Co., 124 A.D.2d 979; Matter of Hanover Ins. Co. [Saint Louis], 119 A.D.2d 529, appeal dismissed 68 N.Y.2d 751). Hence, there is no controversy to be resolved by an arbitrator. Mangano, J.P., Brown, Eiber and Harwood, JJ., concur.