State Farm Mut. Auto. Ins. Co. (Hill), Matter of

• Decision Date: 17 March 1995
• Citation: 625 N.Y.S.2d 387,213 A.D.2d 976
• Parties: Matter of Arbitration Between STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, and Scipio HILL and Scipio Hill, Jr., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 387

625 N.Y.S.2d 387

213 A.D.2d 976

Matter of Arbitration Between STATE FARM MUTUAL AUTOMOBILEINSURANCE COMPANY, Appellant and Scipio HILL and Scipio Hill, Jr., Respondents.

Supreme Court, Appellate Division Fourth Department.

March 17, 1995.

Bouvier, O'Connor by Dale Ehman, Buffalo, for appellant.

Ziller and Galla by Dee Anna Galla, Buffalo, for respondents.

Before DENMAN, P.J., and LAWTON, WESLEY, BALIO and BOEHM, JJ.

MEMORANDUM DECISION:

Scipio Hill and his son were injured when struck by an unidentified vehicle while crossing the street.Vehicles owned by Scipio Hill and his wife were insured under separate policies issued by State Farm Mutual Automobile Insurance Company(State Farm).An endorsement to each policy provides supplementary uninsured motorist (SUM) coverage with limits of $50,000 per person and $100,000 per accident.Each endorsement also includes an anti-stacking provision stating that, if the insured has other similar insurance, the insurer's liability is limited to the SUM coverage with the highest limit of liability and the insurer is liable only for that percentage of liability that its liability limit bears to the total of all SUM coverage.Scipio Hill and his son filed a demand for arbitration, asserting that the SUM coverage of the two policies should be stacked and that they are entitled to coverage to the extent of $100,000.State Farm commenced this proceeding pursuant to CPLR 7503(b) for a stay of arbitration.

Supreme Court erred in denying State Farm's petition.The unambiguous language of each policy precludes the stacking of SUM coverage (see, Rifkin v. State Farm Mut. Auto. Ins. Co., 157 Misc.2d 141, 595 N.Y.S.2d 846).Department of Insurance Regulation 35-D (11 NYCRR 60-2.3[e][III][conditions][7], [8], though not applicable to this policy, reflects the Department's interpretation that the Legislature did not...