Reichel v. Government Employees Ins. Co.

• Decision Date: 01 April 1985
• Docket Number: No. 1,No. 2,1,2
• Citation: 487 N.Y.S.2d 99,107 A.D.2d 463
• Parties: Harold I. REICHEL, as Administrator, etc., Respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant. (Proceeding) In the Matter of GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Harold I. REICHEL, as Administrator, etc., Respondent. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 99

487 N.Y.S.2d 99

107 A.D.2d 463

Harold I. REICHEL, as Administrator, etc., Respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant. (Proceeding No. 1)

In the Matter of GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Harold I. REICHEL, as Administrator, etc., Respondent.

(Proceeding No. 2)

Supreme Court, Appellate Division Second Department.

April 1, 1985.

Pizzitola & DiBlasi, P.C., Brooklyn (Vincent A. DiBlasi and Lawrence B. Lame, Brooklyn, of counsel), for appellant.

Reichel & Reichel, New York City (Solomon Reichel, New York City, Thomas Torto and S. Edward Resciniti, Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, WEINSTEIN and BROWN, JJ.

MANGANO, Justice.

Lena Reichel was injured and subsequently died as a result of a hit-and-run accident. Thereafter in an arbitration proceeding commenced pursuant to the uninsured motorist indorsement of an automobile liability insurance policy covering the decedent, her estate obtained an award from the arbitrator against the insurer GEICO in the principal sum of $100,000. The crucial question to be resolved on this appeal is whether GEICO is entitled to relitigate all of the issues involved in the claim, by trial de novo in a court of competent jurisdiction.

In our view, the question must be answered in the affirmative.

On December 31, 1981, the decedent Lena Reichel, then 81 years of age, was struck by a hit-and-run automobile while walking on a street in Brooklyn, New York, and sustained personal injuries resulting in her death.

Pursuant to an order of the Surrogate's Court, Kings County, dated September 24, 1982, Harold I. Reichel (hereinafter respondent), a son of the decedent, was appointed as the administrator of the decedent's estate. Thereafter, on October 27, 1982, respondent filed a notice of claim with GEICO pursuant to the uninsured motorist coverage provision of an automobile liability insurance policy which had been issued by GEICO to respondent's brother and which covered members of the latter's household, including the decedent. GEICO did not respond to this claim, and petitioner thereupon filed a demand for arbitration of the claim seeking $100,000.

A hearing was held before the arbitrator on May 23, 1983, at which time five witnesses testified on behalf of the respondent. GEICO appeared and cross-examined these witnesses, but did not produce any witnesses on its own behalf.

On June 17, 1983, the arbitrator issued an award in favor of the respondent and against GEICO in the sum of $100,000.

By notice of motion, returnable July 18, 1983, respondent moved to confirm the arbitrator's award and for the entry of judgment upon that award in his favor and against GEICO in the sum of $100,000.

In opposition to respondent's motion, and in an independent proceeding pursuant to CPLR 7511 to vacate the arbitrator's award, GEICO argued, inter alia, that (1) respondent had purchased supplementary uninsured motorist coverage in the amount of $100,000/300,000 which exceeded the statutory limit of $50,000/100,000, (2) pursuant to the insurance policy indorsement reflecting this coverage, either party had the right, if timely exercised, i.e., within 60 days of the arbitrator's award, to a "trial on all of the issues in a court of competent jurisdiction" if the arbitrator's award exceeded the statutory limit of uninsured motorist coverage, and (3) GEICO had exercised this right in a timely fashion by virtue of the fact that on or about July 26, 1983, it commenced an action by summons and complaint, to dismiss the respondent's claim or for an award to respondent "reflecting the fair and just compensation for the pecuniary injuries sustained".

In a reply affirmation, respondent did not in any way contest the validity of the provision relied on by GEICO which permitted either party to obtain a trial de novo. Rather, respondent's sole argument was that this provision only applied to a situation involving an underinsured automobile, and did not apply to a hit-and-run situation, as occurred in the case at bar.

In its decision granting respondent's motion to confirm the arbitrator's award and denying GEICO's application to vacate the award, Special Term specifically rejected GEICO's argument that it was entitled to a trial, stating:

"the court is of the opinion that GEICO's contention is not well taken. The above mentioned provision which permits a post arbitration trial of all issues relates only to under insured motor vehicles as opposed to uninsured motor vehicle [sic ]. In the instant matter the arbitration proceeding involved an unidentified motor vehicle in a 'hit and run' accident and the claim against GEICO proceeded under the uninsured motor vehicle endorsement contained in the insured's automobile liability insurance policy and not pursuant to an under insured motorist claim".

We disagree with the reasoning and conclusion of Special Term.

Insurance Law former § 167(2-a) (presently Insurance Law § 3420[f][1] ) ^* provides for mandatory uninsured motorist coverage (which includes coverage for hit-and-run accidents) with a maximum limit of $50,000/100,000. Specifically, the statute provides in pertinent part:

"2-a. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance and use of a motor vehicle by the insured shall be issued or delivered by any authorized insurer upon any motor vehicle then principally garaged or principally used in this state unless it contains a provision whereby the insurer agrees that it will pay to the insured, as defined in such provision, subject to the terms and conditions set forth therein to be prescribed by the board of directors of the Motor Vehicle Accident Indemnification Corporation and approved by the superintendent, all sums * * * not exceeding a maximum amount or limit of fifty thousand dollars exclusive of interest and costs, on account of death of one person, in any one accident, and the maximum amount or limit, subject to such limit for any one person * * * so killed of one hundred thousand dollars, exclusive of interest and costs, on account of * * * death of, more than one person in any one accident, which the insured or his legal representative shall be entitled to recover as...