Supplemental Uninsured/Underinsured Motorist (SUM) Provision Triggered When an Individual Would Be Afforded More Coverage by the Policy with the SUM Provision

The Second Department determined that the supplementary uninsured/underinsured motorist (SUM) provision was triggered when the policy with the provision (the GEICO policy) had a $300,000 single limit liability and the policy which paid out the claim (the Allstate policy) was a “split limit” policy with a $300,000 per accident limit and a $100,000 per person limit. The injured party was paid the $100,000 limit under the Allstate policy:

Benefits under a SUM policy, when SUM coverage is purchased at the option of the insured, are available “if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage” provided by the insured’s policy (Insurance Law § 3420[f][2][A]…). “The necessary analytical step, then, is to place the insured in the shoes of the tortfeasor and ask whether the insured would have greater bodily injury coverage under the circumstances than the tortfeasor actually has” … . The determination of whether SUM benefits are available “requires a comparison of each policy’s bodily injury liability coverage as it in fact operates under the policy terms applicable to that particular coverage” … . “Only by doing that comparison is it possible to make the required determination: whether the tortfeasor has less bodily injury liability coverage than the insured” … .

Here, a comparison of the two policies at issue, in light of the particular circumstances of this case, demonstrates that an individual … would be afforded greater per-person bodily liability injury coverage under the GEICO policy than under the Allstate policy. Matter of Government Empls Ins Co v Lee, 2014 NY Slip Op 05642, 2nd Dept 8-6-14