In the Matter of the Application for an Order Staying Arbitration between Metlife Auto & Home, Petitioner,
Debra Zampino, Respondent.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorneys for Plaintiff ABAMONT & ASSOCIATES
ECONOMOU & ECONOMOU P.C. Attorney for Defendant
John M. Galasso, J.
Respondent's demand for uninsured motorist arbitration against petitioner, Metlife Auto & Home (Metlife) arose from a car accident precipitated by a hit-and-run driver on September 8, 2006. The unidentified vehicle struck an automobile belonging to a driver insured with GEICO which in turn struck respondent's automobile, causing her to suffer bodily injury. The demand for uninsured arbitration was made on July 3, 2007.
Immediately thereafter, Metlife timely petitioned for a stay of arbitration pursuant to CPLR 7503 on the grounds that prior to any scheduled arbitration respondent must comply with all conditions and/or obligations pursuant to the terms of the insurance contract, including certain disclosure regarding the September 8, 2006 accident and injuries claimed.
Before a decision was rendered, the parties stipulated to the relevant disclosure and, consequently, Metlife's application was denied as moot on September 7, 2007.
It is uncontested that at some point during the disclosure period Metlife learned for the first time that in January 2007 respondent had settled with the identified driver insured by GEICO to the limit of GEICO's policy. The Court has not been provided with any release that may have been METLIFE AUTO & HOME signed pursuant to the settlement.
On November 29, 2007, Metlife disclaimed coverage regarding the hit-and-run driver under the supplementary uninsured/under insured motorist's endorsement for respondent's failure to comply with certain policy exclusions by settling with GEICO's insured without Metlife's knowledge or consent and against its subrogation rights.
When arbitration of a claim is subject to conditions precedent, the existence of such conditions are an issue for the Court to determine ( Rosenbaum v. American Surety Company, 11 N.Y.2d 310). Here, the Court is asked to determine whether respondent's admitted failure to notify her insurance company of the settlement with the tortfeasor for the policy limit affects her SUM coverage for the uninsured tortfeasor.
Condition 10 states that if a settlement with a negligent party for their policy limits is reached, a release may be executed with such party after 30 days actual written notice to Metlife.
This condition is not limited to a formal lawsuit, which requires separate notice and written consent (Exclussion1 and Condition 4). Nor does it change the SUM limit being reduced by monies received by respondent from a carrier representing a negligent party, in this case to ...