Rifkin v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 13 January 1993
• Citation: 157 Misc.2d 141,595 N.Y.S.2d 846
• Parties: Irene RIFKIN, Leonard Rifkin and Sharon Rifkin, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

Page 846

595 N.Y.S.2d 846

157 Misc.2d 141

Irene RIFKIN, Leonard Rifkin and Sharon Rifkin, Plaintiffs, v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

Supreme Court, Orange County.

Jan. 13, 1993.

Mark D. Stern, Goshen, for plaintiffs.

Gerard T. Grogan, P.C., Goshen, for defendant.

HOWARD MILLER, Justice.

IT IS ORDERED THAT the motion for summary judgment is denied, the cross-motion for summary judgment granted, and defendant is entitled to judgment declaring that any claim by plaintiffSharon Rifkin for damages to which she is determined to be entitled under the supplemental uninsured motorist coverage of each of the two policies issued to plaintiffIrene Rifkin by defendant, shall be covered by each policy equally, up to a total maximum coverage of $100,000, with costs and disbursements to defendant.

Plaintiffs bring this action to declare the rights of the parties under two separate automobile liability insurance policies issued to plaintiffIrene Rifkin by defendant.On August 23, 1990plaintiffSharon Rifkin, while operating a vehicle owned by Irene Rifkin, was involved in an automobile accident with a vehicle owned by Elizabeth Reda and driven by Denise Reda.Plaintiffs Sharon and Leonard Rifkin have instituted suit against the Redas and that action is presently scheduled for trial May 24, 1993.Although not stated in the motion papers on this motion, at a pretrial conference on March 4, 1992 in the Rifkin v. Reda case, counsel for the Redas represented to the court that the insurance coverage for the Reda vehicle is $15,000/$30,000.The fact that the Reda case is presently pending does not preclude plaintiffs from pursuing this proceeding (Allstate Insurance Company v. Ruberto, 71 Misc.2d 473, 336 N.Y.S.2d 404).

PlaintiffSharon Rifkin alleges that she has sustained damages which will exceed the available insurance from the Reda carrier and seeks underinsurance coverage pursuant to the terms of two policies issued to Irene Rifkin, her mother-in-law, who resides in the same household with Sharon Rifkin.Each policy, issued by State Farm Mutual Automobile Insurance Company, provides a maximum limit of underinsurance coverage of $100,000.There is no dispute that Sharon Rifkin is insured under the terms of both policies.

The supplementary underinsured motorist ("SUM") endorsement of each policy provides that if similar insurance is available, the liability of the insurer "shall not exceed that of the coverage with the highest limit of liability" and that the insurer is liable only for its proportionate share.Defendant argues that the foregoing provisions require each policy to contribute equally, since the limits of SUM liability in each policy are the same, but that Sharon Rifkin may not recover more than $100,000 by virtue of Insurance Law Section 3420(f)(2).That section provides that:

"(2) Any such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy, subject to a maximum of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to such limit for one person, up to three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident."

Plaintiffs argue that the foregoing provision is not intended to prohibit "stacking" of multiple coverages, but is only intended to limit the coverage in each policy to a maximum of $100,000.

Policy stacking, which is the aggregation or pyramiding of available insurance coverage, continues to be litigated extensively throughout the United States.Many states have enacted either "anti-stacking" or permissive stacking statutes relating to underinsured motorist coverages; New York has not done so.There is no statutory proscription against stacking SUM coverage in New York State, although the Insurance Department enacted a no-stacking regulation 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 disparate statutory language relating to an insurer's liability on a SUM claim.A number of states prescribe minimum coverage requirements and generally permit stacking; other states limit the insurer's liability according to a specific formula; and yet other states specifically prohibit stacking.Nevertheless the general national trend is to prohibit expanding SUM coverage beyond the limits fixed in the enabling statute, despite the insured's having more than one policy available (see, e.g., 45 C.J.S. Insurance, Section 980.1, supplement, p. 1181).

In analyzing the intent of the legislature regarding SUM liability, earlier cases interpreting the limits of uninsured motorist ("UM") protection under Insurance Law Section 3420(f)(1) are instructional, since "as a matter of logic no absolute distinction can be drawn between uninsured motorists coverage and underinsurance coverage ..."(Morris v. Progressive Casualty Insurance Company, Inc., 662 F.Supp. 1489, 1494).

In 1983 the Fourth Department in Sisson v. Travelers Insurance Companies, 94 A.D.2d 953, 464 N.Y.S.2d 77, refused to permit an insured to stack $10,000 of UM coverage when there was but one policy covering two vehicles, relying on a lower court case, Matter of Spychalski, 88 Misc.2d 129, 386 N.Y.S.2d 998, reversed on other grounds58 A.D.2d 193, 396 N.Y.S.2d 533, affd.45 N.Y.2d 847, 410 N.Y.S. 65, 382 N.E.2d 765.In Sisson, the court found that even though the insured had paid two premiums for the UM coverage on both cars, it did not entitle the insured to collect under both coverages.Significantly, the appellate courts specifically declined to rule on the stacking issues when reviewing Spychalski.

In 1984, the Second Department in Allstate Insurance Company v. Libow, 106 A.D.2d 110, 482 N.Y.S.2d 860, refused to permit stacking of UM and SUM claims, noting that a budget report contained in the bill jacket to the 1979statutory amendments to the Vehicle and Traffic Law considered the argument that the bill should have raised the personal injury ceiling but declined to do so, stating " 'This bill would increase the liability limits on insurance payments for deaths resulting from motor vehicle accidents, but would not change the present ceiling on insurance payment[s] for injuries * * * Such limits would remain at $10,000 for injuries to one person'."It is notable that the budget report viewed the $10,000 UM coverage as a "ceiling."

In 1985 the Third Department in Nationwide Mutual Insurance Company v. Miller, 111 A.D.2d 438, 488 N.Y.S.2d 497, refused to allow stacking of UM coverage under two policies owned by husband and wife, respectively.In citing Sisson, Spychalski and Allstate, the court stated:

"It is uncontested, however, that Insurance Law § 3420(f)(1) limits the recovery of an insured under the uninsured motorist indorsement to $10,000 per person and $20,000 per occurrence (see30 NY Jur Insurance§ 1244, at 686 [1963].Further, the relevant case law has consistently prohibited 'stacking' of such insurance coverage in similar situations * * * The...