Matter of Progressive Insurance Companies

• Decision Date: 26 April 2007
• Docket Number: 501591.
• Citation: 2007 NY Slip Op 03622,834 N.Y.S.2d 394,39 A.D.3d 1121
• Parties: In the Matter of the Arbitration between PROGRESSIVE INSURANCE COMPANIES, Respondent, and HEATHER NEMITZ, Appellant.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 1121

834 N.Y.S.2d 394

2007 NY Slip Op 03622

In the Matter of the Arbitration between PROGRESSIVE INSURANCE COMPANIES, Respondent, and HEATHER NEMITZ, Appellant.

501591.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 26, 2007.

Appeal from an order of the Supreme Court (Dowd, J.), entered April 19, 2006 in Otsego County, which granted petitioner's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

Cardona, P.J.

On October 10, 2004, Nicolas Feil, the owner and operator of an all-terrain vehicle (hereinafter ATV), failed to negotiate a turn while riding on a public road in the Town of Rosebloom, Otsego County. Feil drove into a ditch and the ATV overturned, causing his passenger, respondent, to sustain injuries. Feil did not carry insurance on the ATV and, consequently, respondent submitted a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits pursuant to her automobile insurance policy, which had been issued by petitioner. Petitioner denied coverage, asserting that an ATV is not an uninsured motor vehicle as defined in respondent's insurance policy. Respondent thereafter filed a request for arbitration and petitioner commenced this proceeding seeking a permanent stay. Supreme Court granted the petition, prompting this appeal.

Respondent contends that an ATV is included as a covered vehicle under her policy and, therefore, she is entitled to arbitration with respect to her request for SUM benefits. When addressing an insurance coverage dispute, "`[c]ourts must determine the rights and obligations of parties under an insurance contract based on the policy's specific language'" (Pepper v Allstate Ins. Co., 20 AD3d 633, 634 [2005], quoting State Farm Mut. Auto. Ins. Co. v Glinbizzi, 9 AD3d 756, 757 [2004]). While "`[u]nambiguous provisions of a policy are given their plain and ordinary meaning'" (Travelers Indem. Co. v Commerce & Indus. Ins. Co. of Can., 36 AD3d 1121, 1122 [2007], quoting Lavanant v General Acc. Ins. Co. of Am., 79 NY2d 623, 629 [1992]), where policy language is unclear or subject to multiple reasonable interpretations, such ambiguities are resolved against the insurer (see Travelers Indem. Co. v Commerce & Indus. Ins. Co. of Can., supra at 1123; Fulmont Mut. Ins. Co. v New York Cent. Mut. Fire Ins. Co., 4 AD3d 724, 725 [2004]).

Here, respondent does not dispute Supreme Court's conclusion that ATVs are not included in the definition of a "motor vehicle"^* provided in the "General Definitions" section of the subject policy. However, respondent points out that the phrase "[e]xcept as otherwise defined in this policy" at the beginning of the "General Definitions" section contemplates that other definitions in the policy could apply. Consequently, she argues that coverage for an ATV accident nevertheless exists therein because of a separate definition for an uninsured motor vehicle in the SUM endorsement section of the policy which reads, in pertinent part: "(c) Uninsured Motor Vehicle. The term ...