Opinion
April 22, 1993
Appeal from the Supreme Court, Schenectady County (Lynch, J.).
On February 10, 1988, as respondent Mary Ann Cooper (hereinafter respondent) was operating her vehicle insured by petitioner, the vehicle collided with a vehicle operated by Margaret Huntington and insured by Hartford Insurance Company. Hartford provided Huntington with single limit liability coverage in the amount of $100,000. Petitioner provided respondent with bodily injury liability coverage in the amount of $300,000. Respondent's policy also provided for uninsured/underinsured coverage in the amount of $100,000 per person, not to exceed $300,000 per accident. Respondent, with petitioner's consent, settled her action against Huntington for $90,000, and thereafter served a demand on petitioner for arbitration of her underinsurance claim. Petitioner commenced this proceeding to stay arbitration and Supreme Court, reasoning that underinsurance coverage is unavailable when such coverage is identical to the tortfeasor's bodily injury coverage, granted the application and ordered arbitration stayed. Respondents now appeal.
The sole issue raised on this appeal is whether the Huntington vehicle was underinsured within the meaning of respondent's insurance policy. Petitioner's claim that the issue is resolved by a comparison of the bodily injury liability limits of Huntington's insurance policy with the limits in the underinsured motorist coverage provision in respondent's policy is without merit. The comparison must be made between the bodily injury liability limits of each policy involved. Because the limits of bodily injury liability in the policy issued to Huntington ($100,000) are less than the bodily injury liability limit in respondent's policy ($300,000), the Huntington vehicle is underinsured (see, Insurance Law § 3420 [f] [2]; Maurizzio v Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 953; Matter of Automobile Ins. Co. v Stillway, 165 A.D.2d 572, 575-577; Matter of Liberty Mut. Ins. Co. v Balaran, 163 A.D.2d 314; Nationwide Mut. Ins. Co. v Figliomeni, 147 A.D.2d 942; Di Stasi v Nationwide Mut. Ins. Co., 132 A.D.2d 305, 310; Gullo v Hartford Ins. Co., 145 Misc.2d 330, 334). Our decision in Matter of Commercial Union Ins. Co. (Raymond) ( 172 A.D.2d 988, lv denied 78 N.Y.2d 858) should not be interpreted as holding to the contrary.
Weiss, P.J., Mikoll, Mahoney and Casey, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition denied.