Opinion
April 12, 1971
In this proceeding by an automobile liability insurer against its insured to stay arbitration demanded by the latter pursuant to the uninsured motorist indorsement in the insurance policy, petitioner appeals from an order of the Supreme Court, Queens County, dated October 8, 1970, which denied the application and directed petitioner to proceed with the arbitration. Order reversed, on the law, without costs, application granted, and arbitration stayed. On August 15, 1968 respondent, while riding as a passenger in an automobile owned and operated by Dolores Simmons, was injured when the Simmons automobile was struck by a stolen automobile operated by Lawrence Wright, an uninsured motorist. At the time of the accident Simmons was insured under a standard automobile liability policy issued by Allstate Insurance Company. Allstate's policy to Simmons also contained the standard uninsured motorist indorsement, which insured Simmons and any occupants of her automobile who might be injured as a result of the negligence of an uninsured motorist to the statutory extent of $10,000 for one person thus injured and $20,000 for more than one person thus injured. Pursuant to the uninsured motorist indorsement contained in respondent's policy with appellant and the similar indorsement contained in Simmons' policy with Allstate, respondent demanded payment for her injuries sustained as a result of the negligence of Wright from both appellant and Allstate. Being unable to settle her claim with either of them, she demanded arbitration against both of them. Appellant brought this proceeding to stay the arbitration for the reason that Allstate, as carrier for Simmons, is primarily liable to respondent under the uninsured motorist indorsement in its policy for the benefit of Simmons and any occupant of her automobile. Since the extent of this liability by Allstate is similar to the extent of appellant's liability in this connection, and Allstate's policy is primarily liable under the circumstances here, it is our opinion that appellant is entitled to a stay of the arbitration (see Matter of Globe Ind. Co. [ Baker], 22 A.D.2d 658; Cohen v. Liberty Mut. Ins. Co., 35 A.D.2d 719; 28 ALR 3d 554-559). Hopkins, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.