The Fourth Department, reversing Supreme Court, determined defendant-insurer’s supplemental uninsured/underinsured motorist (SUM) benefits were triggered in the traffic accident case. The (SUM) coverage under plaintiff’s policy was greater than the bodily injury coverage in the tortfeasor’s policy. Plaintiff had settled for the tortfeasor’s policy limit and then sought to collect SUM benefits under his policy. Plaintiff’s insurer had determined the policy was not triggered and Supreme Court agreed:
“Insurance Law § 3420 (f) (2) was enacted to allow an insured to obtain the same level of protection for himself [or herself] and his [or her] passengers which he [or she] purchased to protect himself [or herself] against liability to others’ ” … . It is well settled that, “[u]nder Insurance Law § 3420 (f) (2), an insured’s [SUM] coverage is triggered when the limit of the insured’s bodily injury liability coverage is greater than the same coverage in the tortfeasor’s policy”… . More particularly, when determining whether SUM coverage is triggered, “[t]he necessary analytical step . . . 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” … , which “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” … .
Here, a comparison of the two policies at issue, in light of the circumstances of this case, demonstrates that plaintiff would be afforded greater coverage under his policy than under the tortfeasor’s policy. The tortfeasor’s policy would have provided plaintiff with only $100,000 of coverage for bodily injury, whereas plaintiff’s policy would have provided him with up to $300,000 of coverage for bodily injury. Although plaintiff’s SUM benefits would be reduced by the amount paid to his wife under the policy’s $300,000 per accident maximum, he is still afforded more coverage under his policy than under the tortfeasor’s policy because the bodily injury limit for an accident in which two people are injured would be $200,000 under the tortfeasor’s policy, which is less than the coverage afforded by plaintiff’s policy. Consequently, the SUM provision of plaintiff’s policy was triggered … . Gross v Travelers Ins., 2020 NY Slip Op 04253, Fourth Dept 7-24-20