Injured Motorcyclist Not Entitled to Uninsured Motorists Benefits Under His Father's Personal Auto Policy -- Owned But Not Insured Motor Vehicle Exclusion of SUM Endorsement Applied

UM/SUM – OWNED VEHICLE EXCLUSION
Matter of New York Cent. Mut. Fire Ins. Co. v. Polyakov
(2nd Dept., decided 6/1/2010)

Polyakov drove his motorcycle into the rear of Tsismanakis's automobile while it was stopped at a traffic light on Coney Island Avenue in Brooklyn. Polyakov reported to the responding police officer that an unidentified vehicle struck his motorcycle causing him to swerve and hit the Tsismanakis vehicle. At the time of the accident, Polyakov's father had an automobile insurance policy issued by New York Central Mutual Fire Insurance Company. The only vehicle named under that policy as a covered vehicle, however, was a 2001 Nissan Maxima owned by Polyakov's father.

Polyakov' retained counsel, who notified NYCM that Polyakov intended to file both no-fault and uninsured motorists coverage claims under Polyakov's father's policy with NYCM.  Counsel advised NYCM that Polyakov was involved in the accident while he "occupied [an] uninsured vehicle" and that he was the son of and a member of the named insured's household. In his application for no-fault benefits, Polyakov asserted that the owner of the motorcycle he was driving was "unknown at this time."

NYCM subsequently denied Polyakov's claim for supplementary uninsured/underinsured motorists coverage benefits based on its investigation, which revealed that Polyakov was the titled owner of the motorcycle he was riding at the time of the accident, but which was not an insured vehicle under the subject policy.  In denying Polyakov's UM claim, NYCM cited the SUM endorsement's owned vehicle exclusion, which provided:

This SUM coverage does not apply . . . [t]o bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made.

Polyakov demanded arbitration of his UM claim, and NYCM commenced this special proceeding to stay that arbitration.  The Supreme Court denied NYCM's petition and directed the parties to proceed to arbitration.

In REVERSING the Supreme Court's order and granting NYCM's petition, the Second Department held:

The policy language in question was not ambiguous, and the petitioner was entitled to have the provisions it relied on to disclaim coverage enforced (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d 486, 487-488; see generally Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865). The SUM endorsement under the subject policy provided, in relevant part, that "This SUM coverage does not apply . . . [t]o bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made." This language is not ambiguous and the terms must be construed according to their plain and ordinary meaning. This policy exclusion unambiguously excluded from SUM coverage compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident with an uninsured vehicle, while occupying a motor vehicle he or she owns, which vehicle was not covered under the policy (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488; Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d 127, 129; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d 829, 829-830). There is no dispute that Polyakov, at the time of the accident, was occupying a vehicle, the motorcycle, that he owned but that was not covered under the subject policy. 

The Appellate Division also rejected Polyakov's contention that UM coverage was available under Part C--Uninsured Motorists Coverage of his father's personal auto policy with NYCM, finding:

[T]he exclusion from coverage also would have been applicable under the mandatory uninsured motorists provision of the policy, which similarly provides that the petitioner does "not provide Uninsured Motorists Coverage for bodily injury' sustained: 1. By an insured while occupying', or when struck by, any motor vehicle owned by that insured' which is not insured for this coverage under this policy." However, as the petitioner correctly argues, the mandatory uninsured motorists provision was removed from the subject policy by amendment pursuant to Section III of the Amendment of Policy Provisions - New York, and the SUM endorsement was added (see generally 11 NYCRR 60-2.3[e]).