Matter of State Farm Mut. Auto. Ins. Co. v Beddini

Matter of State Farm Mut. Auto. Ins. Co. v Beddini 2011 NY Slip Op 07190 Decided on October 13, 2011 Appellate Division, First Department 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.

Decided on October 13, 2011
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ.
5722N 110500/10

[*1]In re State Farm Mutual Automobile Insurance Company, Petitioner-Appellant,

v

Andrew A. Beddini, et al., Respondents-Respondents.



 
Richard T. Lau & Associates, Jericho (Joseph G. Gallo of
counsel), for appellant.
Ronemus & Vilensky, LLP, New York (Michael B. Ronemus
of counsel), for respondents.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 1, 2011, which denied the petition to permanently stay arbitration of respondents' uninsured motorist claim and dismissed the proceeding, unanimously reversed, on the law, without costs, and the petition granted.

Respondents were traveling on a Vespa motorscooter behind a
pickup truck being operated by an unidentified driver. A large, cardboard box measuring approximately five feet by four feet, flew off of the pickup truck and became lodged in the front wheel of the Vespa. This caused respondents to be ejected from the motorcycle and to sustain serious injuries. Respondents filed an uninsured/underinsured motorist claim under respondent Beddini's automobile insurance policy issued by petitioner and they demanded arbitration of the claim.

In Matter of Allstate v Killakey (78 NY2d 325 [1991]), relied upon by the motion court, the claimant was killed when a tire and rim from an unidentified vehicle struck the claimant's vehicle, causing it to crash. The Court of Appeals reversed the stay of arbitration of the uninsured motorist claim, holding that physical contact occurs "when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle" (id. at 329). The Court implicitly found that the tire and rim that caused the accident were essential to the operation of the truck, and thus, an integral part of it. Here, however, the cardboard box is not an integral part of the pickup truck. Accordingly, respondents' collision with the box does not [*2]constitute the type of physical contact required to impose uninsured motorist coverage (see e.g. Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116 [1971]; Matter of Insurance Co. of N. Am. [Carrozo], 203 AD2d 210 [1994]).

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

ENTERED: OCTOBER 13, 2011

CLERK