Progressive Cas. Ins. Co. v. Beardsley

• Decision Date: 20 November 2015
• Citation: 133 A.D.3d 1273,2015 N.Y. Slip Op. 08522,19 N.Y.S.3d 845
• Parties: In the Matter of PROGRESSIVE CASUALTY INSURANCE CO., Petitioner–Respondent, v. Jeffrey BEARDSLEY, Respondent, and Merchants Mutual Insurance Co., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1273
19 N.Y.S.3d 845
2015 N.Y. Slip Op. 08522

In the Matter of PROGRESSIVE CASUALTY INSURANCE CO., Petitioner–Respondent,
v.
Jeffrey BEARDSLEY, Respondent, and Merchants Mutual Insurance Co., Respondent–Appellant.

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

Nov. 20, 2015.

19 N.Y.S.3d 845

Hiscock & Barclay, LLP, Rochester (Joseph A. Wilsonof Counsel), for Respondent–Appellant.

19 N.Y.S.3d 846

Law Office of Keith D. Miller, Liverpool (Keith D. Millerof Counsel), for Petitioner–Respondent.

Opinion

MEMORANDUM:

133 A.D.3d 1274

Jeffrey Beardsley (respondent) sustained injuries when he was struck by a vehicle while walking across a parking lot, and he subsequently recovered the full $25,000 policy limit from the insurer of that vehicle. Respondent thereafter submitted a claim for supplemental uninsured/underinsured motorist (SUM) benefits pursuant to a personal automobile policy issued by petitioner, Progressive Casualty Insurance Co. (Progressive), to his father, Jeffrey F. Beardsley (Beardsley), which listed respondent as an insured driver and household resident. Respondent also submitted a claim for SUM benefits under a commercial automobile policy issued by respondent Merchants Mutual Insurance Co. (Merchants) with respect to certain vehicles associated with Beardsley's excavation business. Merchants disclaimed coverage on the ground that Beardsley was “insured as a corporation,” and the SUM coverage provided in its policy did not extend to respondent inasmuch as he was not a member of Beardsley's excavation business and was not occupying an insured vehicle at the time of the incident. Respondent thereafter demanded arbitration with respect to his claims for SUM coverage under each policy. Progressive commenced this proceeding pursuant to CPLR article 75 seeking a temporary stay of arbitration pending the completion of discovery. In addition, Progressive sought an order determining that Merchants is a coinsurer for purposes of respondent's SUM claims and that any SUM award be paid in proportion to each insurer's policy limit. In its answer, Merchants asserted, inter alia, a...