Mackie v. Metropolitan Ins. Co.

Decision Date08 November 1991
Citation577 N.Y.S.2d 193,152 Misc.2d 384
PartiesIn the Matter of the Application of Richard MACKIE, As Administrator of the Goods, Chattels and Credits of Laura Mackie, deceased, and Richard Mackie, Individually, Petitioner, v. METROPOLITAN INSURANCE COMPANY, Respondent. In the Matter of the Application of METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Petitioner, v. Richard MACKIE, As Administrator of the Goods, Chattels and Credits of Laura Mackie, Deceased, Richard Mackie, Individually and Liberty Mutual Insurance Company, Respondents.
CourtNew York Supreme Court

Bosco, Bisignano & Mascolo, by John Bosco, Staten Island, for petitioner.

Smith & Laquercia, P.C., by Michael A. DeMicco, New York City, for respondent.

E.J. AMANN, Jr., Justice.

The sole issue raised by the parties is whether or not the "stacking" of insurance policies is permitted in the present circumstances. The Respondent contends that the tender of payment by the Royal Insurance Co., bars further payment under its policy.

In the present case, the Petitioner's decedent was killed in a vehicular accident which occurred in January of 1991. Ms. Laura Mackie, the decedent, had been a passenger in an auto driven by Peter Pacaro. The vehicle was neither registered nor insured.

The Royal Insurance Company had issued a policy covering an auto owned by Ms. Mackie. The amount of uninsured motorist coverage was $50,000, which had been tendered. A second policy, covering members of the household, was issued to Kathleen and Richard Mackie by the Liberty Mutual Insurance Co. The uninsured motorist coverage was for $100,000.00. 1 A third policy was issued by Metropolitan Insurance Co. to Ms. Mackie's brother, Thomas Mackie. The uninsured motorist coverage was $50,000.00. It is this policy which forms the basis for the instant application.

The Respondent relies upon a number of cases to support its position 2. A review of the cases cited in its Memorandum of Law, reveals that they are distinguishable from the facts in the case before the Court and accordingly, their holdings are not controlling.

Both the cases of Allstate v. Orsini, 142 Misc.2d 25, 535 N.Y.S.2d 913 and Sisson v. Travelers Ins. Cos., 94 A.D.2d 953, 464 N.Y.S.2d 77 involved fact situations where there was but a single policy with multiple cars insured; whereas in the present case multiple policies exist. The final case cited by Respondents on this issue is State Farm Mutual Auto. Ins. Co. v. Isler, 38 A.D.2d 966, 331 N.Y.S.2d 547. In that case, in contravention of the language of the policy, the Respondent, Isler, settled a case with one carrier before he received the consent of the Petitioner, State Farm. Accordingly, the Court found the recovery would not have been permitted under State Farm's policy.

The Respondent seeks to distinguish the cases cited by the Movant, because they involved different insurance clauses, such as underinsurance or liability/bodily injury provisions, while the...

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2 cases
  • Rifkin v. State Farm Mut. Auto. Ins. Co.
    • United States
    • New York Supreme Court
    • January 13, 1993
    ...effective October 1, 1992. Extensive research has revealed but one other New York case on this issue. In Mackie v. Metropolitan Insurance Company, 152 Misc.2d 384, 577 N.Y.S.2d 193, the court held stacking to be permissible. Cases from other jurisdictions offer scant guidance due to the dis......
  • Cain v. Allstate Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • December 12, 1996
    ...benefits under each (see, Di Stasi v. Nationwide Mut. Ins. Co., 132 A.D.2d 305, 309, 522 N.Y.S.2d 340; Matter of Mackie v. Metropolitan Ins. Co., 152 Misc.2d 384, 577 N.Y.S.2d 193). The cases relied upon by defendant do not compel a contrary conclusion (see, e.g., Matter of Nationwide Mut. ......

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