In the Matter of The Arbitration Between Erie Ins. Co.

• Decision Date: 06 May 2011
• Parties: In the Matter of the Arbitration Between ERIE INSURANCE COMPANY, Petitioner–Respondent,andJoshua BOSS, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1722
922 N.Y.S.2d 710
2011 N.Y. Slip Op. 03758

In the Matter of the Arbitration Between ERIE INSURANCE COMPANY, Petitioner–Respondent,andJoshua BOSS, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

May 6, 2011.

[922 N.Y.S.2d 710]

Chiacchia & Fleming, LLP, Hamburg (Tiffany M. Kopacz of Counsel), for Respondent–Appellant.Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Thomas P. Cunningham of Counsel), for Petitioner–Respondent.PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

[84 A.D.3d 1722] Respondent was injured when he was struck by a motor vehicle operated by

[922 N.Y.S.2d 711]

Melissa Brea, a Massachusetts resident, while he was crossing a street in Boston, Massachusetts. Respondent is insured under an automobile insurance policy issued by petitioner to respondent's father in New York State. The policy provides supplemental uninsured/underinsured motorist (SUM) coverage and, after petitioner gave respondent permission to settle with Brea's insurance carrier, he filed a claim for SUM benefits with petitioner and subsequently demanded arbitration. By order to show cause, petitioner sought, inter alia, a determination that Massachusetts [84 A.D.3d 1723] law applies to the issue of respondent's recoverable damages in the pending SUM arbitration. Massachusetts has a modified comparative negligence rule ( see Mass Gen. Laws Ann., tit. 2, ch. 231, § 85), whereas New York has a pure comparative negligence rule ( see CPLR 1411).

Respondent contends that Supreme Court erred in determining that Massachusetts law applied with respect to the SUM arbitration. We reject that contention. With respect to issues involving the interpretation of the SUM endorsement or other aspects of the policy, the standard choice of law analysis would result in the application of New York law ( see Matter of Allstate Ins. Co. [Stolarz–New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219, 225–228, 597 N.Y.S.2d 904, 613 N.E.2d 936; see generally Cooney v. Osgood Mach., 81 N.Y.2d 66, 73–78, 595 N.Y.S.2d 919, 612 N.E.2d 277; Neumeier v. Kuehner, 31 N.Y.2d 121, 125–129, 335 N.Y.S.2d 64, 286 N.E.2d 454). The purpose of SUM coverage, however, is to compensate an insured party when he or she is injured by an uninsured or underinsured driver ( see Matter of Federal Ins. Co. v. Watnick, 80 N.Y.2d 539, 543, 592 N.Y.S.2d 624, 607 N.E.2d 771). We thus conclude that an individual insured under a New York...