| Matter of Liberty Mut. Ins. Co. v Walker |
| 2011 NY Slip Op 04054 [84 AD3d 960] |
| May 10, 2011 |
| Appellate Division, Second Department |
| In the Matter of Liberty Mutual Insurance Company,Respondent, v Suzanne Walker, Appellant. |
—[*1] Harris, King & Fodera, New York, N.Y. (Kevin J. McGinnis of counsel), forrespondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim forsupplemental underinsured motorist benefits, the appeal is from an order of the Supreme Court,Richmond County (Ajello, J.), dated May 18, 2010, which, after a hearing, granted the petition.
Ordered that the order is affirmed, with costs.
The appellant, Suzanne Walker, had an automobile insurance policy with the petitioner,Liberty Mutual Insurance Company. Her supplementary uninsured/underinsured motorist(hereinafter SUM) coverage limit was $100,000. On August 12, 2005, Walker was a pedestrianwhen she was struck by a motor vehicle in Staten Island. She notified the petitioner of her intentto pursue a SUM claim. Walker then commenced a personal injury action against allegedtortfeasor Boris D. Volodarsky, the driver of the vehicle that struck her, and alleged tortfeasorVerizon Communications, Inc., and Verizon New York, Inc. (hereinafter together Verizon),which had trucks parked at the intersection where the accident occurred. In a settlementagreement, Volodarsky agreed to pay Walker the sum of $25,000, and Verizon agreed to payWalker the sum of $650,000. Walker sought permission from the petitioner to settle with thealleged tortfeasors. The petitioner granted Walker permission, but further stated that, pursuant tothe express terms of the SUM endorsement, because Walker received the sum of $675,000, wellin excess of her $100,000 SUM coverage limit, she no longer had a valid SUM claim. Walkerdemanded arbitration. The petitioner then commenced this proceeding pursuant to CPLR article75 to permanently stay arbitration. In the order appealed from, the Supreme Court granted thepetition. We affirm.
The petitioner correctly concedes that Volodarsky was an underinsured motorist, and that theappellant was not required to exhaust the coverage limits of all tortfeasors before her entitlementto submit a SUM claim was triggered, provided that she exhausted the full liability limits of atleast one tortfeasor (see e.g. S'Dao v National Grange Mut. Ins. Co., 87 NY2d 853[1995]). However, the pertinent issue here is not whether Walker may submit a SUM claim as aninitial matter, but whether any additional recovery is possible. As the petitioner observes,paragraph six of the applicable SUM endorsement sets forth the petitioner's maximum paymentunder that endorsement as the difference between the SUM coverage limit, here $100,000, andthe amounts "received by the insured or the insured's legal [*2]representative, from or on behalf of all persons that may be legallyliable for the bodily injury sustained by the insured." Here, it is undisputed that Walker receiveda cumulative total of $675,000 "from or on behalf of all persons that may be legally liable for thebodily injury sustained by the insured," well in excess of her $100,000 SUM coverage limit.Thus, no further recovery was possible, and arbitration was rendered academic, as there wasnothing to arbitrate (see Matter of General Acc. Ins. Co. v Brown, 263 AD2d 542 [1999];Matter of Commerce & Indus. Ins. Co. v Weber, 240 AD2d 742 [1997]; Matter ofGovernment Empls. Ins. Co. v Abbensett, 240 AD2d 578 [1997]; Matter of NationwideIns. Co. v Kuchta, 238 AD2d 510 [1997]; Matter of Lotito v Metropolitan Prop. & Cas.Ins. Co., 228 AD2d 443 [1996]; cf. Matter of Liberty Mut. Ins. Co. v Tetteh, 277AD2d 239 [2000]). Accordingly, the Supreme Court properly granted the petition to permanentlystay arbitration.
Walker's remaining contentions are without merit. Prudenti, P.J., Angiolillo, Dickerson andRoman, JJ., concur.