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This case is one of appeal being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The plaintiff in this case has settled his action to recover damages for personal injuries against the tort feasor in the amount of $25,000. This action is brought against the plaintiff’s insurance company for a breach of contract. The plaintiff is seeking to recover damages under the supplementary underinsured motorist endorsement of his auto insurance policy.
Case Background
The plaintiff purchased his car insurance policy from the defendant in December of 1997. In addition to the other coverage from the policy there was supplementary uninsured motorist coverage in the amount of $100,000 for each occurrence. This is the policy that was in effect when the plaintiff was involved in a car accident.
The plaintiff sued the driver of the vehicle that hit him to recover damages for personal injuries in the Supreme Court of Kings County. The pleadings in this particular personal injury proceeding are not included in the records for this appeal. In the complaint made by the plaintiff he states that he sustained serious injuries as a result of the accident.
The plaintiff notified his insurance company about the car accident and about the pending lawsuit in a timely manner. The insurance policy from the driver of the vehicle had a limit of $25,000.
The plaintiff states that his medical bills exceeded the $100,000 of his insurance policy, but he submitted a claim for $75,000, which was $25,000 less than his $100,000 limit. His insurance company did not pay the claim.
The insurance company denied the material allegations given by the plaintiff and raised several defenses in regard to their case. The insurance claimed that the plaintiff did not sustain a serious enough injury under the meaning of Insurance Law section 5102 and for that reason had no right to maintain this action against them.
The plaintiff cross motioned to strike this defense made by the defendant that the injury he sustained was not serious enough. The court granted this cross motion and the defendant is now appealing this decision.
Court Discussion and Decision
The court has reviewed all of the facts and evidence in this particular case. It is determined that the defense regarding the injuries of the plaintiff not being serious enough was properly stricken by the Supreme Court of Kings County. The injuries that the plaintiff sustained meet the requirements of the meaning of Insurance Law 5102.
In addition, the court finds that the motion for notice to appeal that was made by the Supreme Court of Kings County was premature. The order is affirmed by this court and the court is also ordering that the plaintiff be awarded one bill of costs for this case as well.
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