Kansas City Fire & Marine Ins. Co. v. Barnes for Barnes

• Decision Date: 15 November 1985
• Citation: 115 A.D.2d 311,495 N.Y.S.2d 876
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Application of KANSAS CITY FIRE & MARINE INSURANCE COMPANY, Appellant, v. Lawrence E. BARNES and Sharon Barnes for Jodi BARNES, a Minor, Respondents.

Page 876

495 N.Y.S.2d 876

115 A.D.2d 311

In the Matter of the Application of KANSAS CITY FIRE & MARINE INSURANCE COMPANY, Appellant, v. Lawrence E. BARNES and Sharon Barnes for Jodi BARNES, a Minor, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 15, 1985.

Charles F. Van Volkenburg, Buffalo, for appellant.

Dwyer & Dwyer, P.C. by Joseph Dwyer, Olean, for respondents.

Before DILLON, P.J., and DENMAN, BOOMER, GREEN and O'DONNELL, JJ.

MEMORANDUM:

On petitioner's motion to stay arbitration, the court erred in denying the motion and determining the dispute on the merits. Arbitration cannot be compelled and should be stayed where the subject matter of the dispute is not within the intent of the arbitration agreement (see Matter of County of Rockland 51 N.Y.2d 1, 7, 431 N.Y.S.2d 478, 409 N.E.2d 951). When called upon to compel or stay arbitration, the court must always inquire whether the parties to an arbitration agreement have agreed to arbitrate the particular dispute (see Matter of Carey v. Westinghouse Elec. Corp., 11 N.Y.2d 452, 456, 230 N.Y.S.2d 703, 184 N.E.2d 298, revd. on other grounds 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320, mod. on other grounds 14 N.Y.2d 581, 248 N.Y.S.2d 876, 198 N.E.2d 256). Where the arbitration clause is a narrow one limiting arbitration to specific questions, matters other than those specified are not deemed to be within the arbitration clause (see Matter of County of Rockland supra, 51 N.Y.2d at pp. 9-11, 431 N.Y.S.2d 478, 409 N.E.2d 951). The insurance policy here limits arbitration to disputes with respect to two questions: the insured's right to recover from the underinsured tort-feasor and the amount of the insured's damages. Contract interpretation involving the scope of coverage under the policy is not embraced within this limited arbitration agreement (cf. Matter of Napolitano 21 N.Y.2d 281, 287 N.Y.S.2d 393, 234 N.E.2d 438: Matter of Hanover Ins. Co. 96 A.D.2d 471, 464 N.Y.S.2d 785). Petitioner's motion papers aver that there are no arbitrable disputes but only the nonarbitrable question of whether petitioner was entitled to reduce payment under the underinsured motorist coverage by the amount of the tort-feasor's settlement. Respondents did not submit papers in opposition to the motion and thus did not refute petitioner's argument that only a nonarbitrable issue was involved. Indeed, respondents have stipulated "for the purposes of the motion at Special Term and of this appeal *...