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Progressive Insurance Co. v. Dillon

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 3, 2009

IN RE PROGRESSIVE INSURANCE COMPANY, PETITIONER-RESPONDENT,
v.
MELTON DILLON, ET AL., RESPONDENTS-APPELLANTS.

Order, Supreme Court, New York County (James A. Yates, J.), entered November 26, 2008, which granted petitioner's motion to stay arbitration to the extent of directing an evidentiary hearing on the preliminary issue of insurance coverage, unanimously modified, on the law, to redefine the framed issue as "whether the insured's policy included underinsured motorist coverage," and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Friedman, Acosta, Renwick, Abdus-Salaam, JJ.

115237/03

The court correctly declined to address respondents' other arguments pending a determination of the issue of underinsured motorist coverage, since estoppel cannot be used to create coverage where none exists, regardless of whether the insurance company timely issued its disclaimer (Wausau Ins. Cos. v Feldman, 213 AD2d 179, 180 [1995]). We modify only to redefine the framed issue as indicated. We reject respondents' attempts to liken the court's previous orders to a judicial determination that coverage existed. There is no other basis in the current record for finding that coverage existed.

We have considered respondents' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091203

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