Majority
p. 958In the Matter of Arbitration between New York Central Mutual Fire Insurance Co., Appellant, and Richard Smith et al., Respondents. [665 NYS2d 994]
—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.
p. 959
stated 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.
Cases cited
- In re the Arbitration between Allstate Insurance & Stolarz 81 NY2d 219 at 223-224 p. 958
- United Community Insurance v. Mucatel 127 Misc 2d 1045 p. 958
- United Community Insurance v. Mucatel 69 NY2d 777 p. 958