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The Law Offices of Frank J. Dito, Jr.

Uninsured Motorist Coverage in New York | Underinsured Motorist Coverage in New York | Supplementary Motorist Coverage in New York

Frank J. Dito, Jr.
Car accident, personal injury and workers’ compensation attorney serving Staten Island and Brooklyn New York.

Many insurance policies issued in New York contain provision to protect you from uninsured motorists (UM), underinsured motorists (UIM) and supplementary uninsured motorists (SUM). The coverage's are quite complex in the events that trigger the coverage are constantly changing.

Under many liability policies and the SUM endorsement, the definition of an "insured" includes the "named insured" on a insurance policy, their spouse and all relatives of the named insured and their spouse that are residents of the same household.

In a recent case, the Appellate Division held that since a corporation was the "named insured" under an insurance policy, a resident that lived in one of their apartments could not be considered to be a named insured.

Additionally, an occupant of a vehicle may be considered an "insured" under the terms of an insurance policy. The definition of an "occupant" has been held to cover a person hit by a passing motorist while exiting their vehicle. The court held that the person was still "vehicle oriented" while he was injured. 

The UM/Sum endorsements in an insurance policy provide benefits to "insured persons" who sustain an injury caused by "accidents" "arising out of the ownership, maintenance or use" of an uninsured or underinsured vehicle.

Whether the accident involves the "use and operation" of a motor vehicle has been subject to litigation, most commonly involving police officers. This commonly occurs when motorists are pulled over by police officers and an altercation results. In such circumstances, the court must determine if the injuries were the result of an accident or an intentional act. If the acts are intentional, no coverage would lie. If the act was labeled an assault, and the assailant convicted, the injuries would not be the result of an accident and no benefits under the uninsured portion of the policy were provided. 

In order to obtain benefits under the UM/UIM/SUM endorsements, the law requires timely notice be given to the insurers of the intention to make a claim. A failure to satisfy the notice requirements will result in a denial of the claim. The SUM endorsement in New York State, known as Regulation 35-D, requires notice to be given as soon as practicable. Other endorsements, such as UM, require notice to be given within 90 days. These different requirements have lead to numerous cases which discuss timely notice. Courts have held that it is the claimant's burden to prove that the notice was timely, measured by the date that the client knew or should have known that the tortfeasor was underinsured." The carrier is sometimes required to show that they were prejudiced by the late notice.

A claimant is also required to provide a copy of the summons and complaint commenced by the insured against the person responsible for the use of a motor vehicle involved in an accident. Late notice shall not invalidate any claim unless the failure to provide timely notice has impaired the ability of the insurer to investigate the claim. However, if the insured's liability has been determined prior to notice, there is an irrefutable presumption of prejudice to the insurer.

Notice to an insurance broker will not constitute sufficient notice to the insurer. If a reasonable excuse for the delay is provided, based upon the circumstances, the courts may allow a late notice claim to proceed.

Insurance companies contribute to the difficulty in bringing a valid claim by failing to advise of the existence of a liability insurance policy within 60 days after they receive the request. The insurer, if they have reasonable basis to believe that they are unable to identify the insurance policy, they have 45 days to ask for more information. Another 45 days is provided to then furnish the requested policy information to the claimant. The existence of a liability policy will determine a claimants ability to request UM/UIM/SUM claims against their own insurance policies.

Such claims are not litigated in the same manner as a personal injury lawsuit. The terms of the insurance policy require such claims to be arbitrated. Normally, after the insurance carrier has declined to settle the claim, the claimant requests binding arbitration. Within 20 days from the date of filing the arbitration petition, the insurer may file a lawsuit in Supreme Court requesting the arbitration be stayed pending resolution of discovery. According to the terms of the policy, the carrier has the opportunity to have the claimant examined by a doctor of their choosing and to obtain copies of the claimant's medical records. Also, if the underlying tort claim was settled without the insurers approval, destroying their subrogation rights, the court will stay the arbitration permanently, preventing the claim from proceeding.

The City of New York and the New York City Transit Authority are required to abide by the uninsured motorist law as a regular insurance company, despite the fact they are self-insured.

If an insurance company claims that your policy was canceled, or that coverage does not apply, the manner in which it was supposedly canceled may be in violation of State law. It is well settled that a notice of disclaimer must be in writing and must be sent to all claimants and the insureds. The notice of disclaimer must advise the insured of the specific reasons for the denial. A notice of disclaimer is very different from a reservation of rights letter. When an insurance company provides a reservation of rights letter, it is advising the claimant that they are aware of the claim and will be conducting an investigation. If their investigation reveals that the occurrence is not covered by the insurance policy, it will lead to a notice of disclaimer, in which the insurer will not defend or indemnify the named insured under the terms of the policy.

In New York State, if your claim is for uninsured motorist coverage stemming from a hit and run accident with an unidentified vehicle, the two vehicles must have made physical contact. It is insufficient that an unidentified vehicle caused you to swerve off the road or to hit into a tree. There must be physical contact and that after reasonable efforts, you cannot identify the owner and/or driver of the vehicle and the accident be reported to the police within 24 hours. In New York State, if the claimant does not have car insurance and is the victim of a hit and run, they may file for uninsured and no-fault benefits through the Motor Vehicle Accident Indemnification Corporation, or MVAIC.

Car insurance policies generally exclude coverage for damages caused by a stolen vehicle. Vehicle and Traffic Law 388 creates a strong presumption of permissive use and can only be defeated with sufficient proof that the driver did not use the car with the owner's permission, express or implied. Even if the owner of the car testifies that the driver was not using the car with his permission, it is not sufficient to overcome the presumption of permissive use. A vehicle owner may still be held liable for a stolen vehicle if they have violated Vehicle and Traffic Law 1210(a) by leaving the vehicle unattended with the engine running or the keys in the ignition.