Allstate Ins. Co. v. Bieder

• Decision Date: 21 February 1995
• Citation: Allstate Ins. Co. v. Bieder, 622 N.Y.S.2d 814, 212 A.D.2d 693 (N.Y. App. Div. 1995)
• Parties: In the Matter of ALLSTATE INSURANCE COMPANY, Petitioner-Respondent, v. Frank D. BIEDER, Respondent-Respondent, State Farm Insurance Company, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 814

622 N.Y.S.2d 814

212 A.D.2d 693

In the Matter of ALLSTATE INSURANCE COMPANY, Petitioner-Respondent, v. Frank D. BIEDER, Respondent-Respondent State Farm Insurance Company, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 21, 1995.

James R. McCarl, Circleville, for respondent-appellant.

Kornfeld, Rew, Newman & Ellsworth, Suffern (Thomas J. Newman, of counsel), for petitioner-respondent.

Newman & Okun, P.C., New York City (Eric M. Babat, of counsel), for respondent-respondent.

Before BALLETTA, J.P., and THOMPSON, SANTUCCI, ALTMAN and HART, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, State Farm Insurance Company appeals from a judgment of the Supreme Court, Orange County (Barone, J.), dated August 31, 1993, which granted the petition, and declared that the appellant was the primary insurer and was obligated to provide uninsured motorist insurance coverage to the respondent Frank D. Bieder.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof which declared that State Farm Insurance Company is the primary insurer, and substituting therefor a provision declaring that Allstate Insurance Company and State Farm Insurance Company shall be responsible for payment on a pro rata basis of any award made to Frank D. Bieder on the subject uninsured motorist claim, and the parties are directed to proceed to arbitration of that claim; as so modified, the judgment is affirmed, without costs or disbursements.

The law is well settled that where different insurers provide coverage for the same interest and against the same risk, concurrent coverage exists (see, Federal Ins. Co. v. Commercial Union Ins. Co., 126 A.D.2d 892, 893, 510 N.Y.S.2d 785; Federal Ins. Co. v. Empire Mut. Ins. Co., 181 A.D.2d 568, 569, 581 N.Y.S.2d 56). Additionally, where both policies purport to be in excess of each other, the excess clauses operate to cancel each other, both coverages are rendered primary, and each company is obligated to share in the amount that may be awarded following arbitration on a pro rata basis (see, Public Serv. Mut. Ins. Co. v. Katcher, 36 N.Y.2d 295, 299-300, 367 N.Y.S.2d 752, 327 N.E.2d 799; Federal Ins. Co. v. Atlantic Natl. Ins. Co., 25 N.Y.2d 71, 78-80, 302 N.Y.S.2d 769, 250 N.E.2d 193; Matter of Crum & Forster Org. v. Morgan, 192 A.D.2d 652, 654, 596 N.Y.S.2d 472; Lumber Mut. Ins. Co. v. Lumberman's...