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May 11, 2015

Appellate Division Holds Pennsylvania Uninsured Motorist Policy Exclusions Unenforceable in New York

The New York Appellate Division, Second Department recently held that the requirement that all New York auto insurers must provide uninsured motorist coverage as set forth in Insurance Law § 3420(f)(1) prohibits the enforcement of contrary policy exclusions contained in a Pennsylvania automobile insurance policy. Braithewaite v. Progressive Casualty Insurance Company, 2015 N.Y. Slip Op. 02717 (2nd Dep't, Apr. 1, 2015).

In Braithewaite, Plaintiff was injured in a motor vehicle accident in New York, while a passenger in a car owned by Pennsylvania resident, Dawn Wilkes, and operated by Jeryn Bright. The Wilkes' vehicle was insured by Progressive Casualty Insurance Company under a policy written in Pennsylvania which contained an endorsement for uninsured motorist coverage, with a liability limit of $300,000. Because Bright did not have Wilkes' permission to operate the vehicle at the time of the accident, plaintiff was not entitled to coverage under the liability portion of the policy. Under the policy's uninsured motorist coverage, the insurer was obligated to pay up to $300,000 for damages sustained by an "insured person", arising out of the ownership, maintenance or use of an "uninsured motor vehicle."

Plaintiff was an "insured person" under the policy definition, as he was "occupying, but not operating, a covered auto" at the time of the accident. However, the Progressive policy defined an "uninsured motor vehicle" as excluding a vehicle owned by the named insured and a covered auto. As a result, Progressive disclaimed coverage on the grounds that Wilkes' vehicle was not an uninsured motor vehicle under the express terms of the policy.

Plaintiff commenced suit in New York seeking recovery under the uninsured motorist coverage provisions of the policy. Plaintiff moved for summary judgment seeking to recover $300,000 in uninsured motorist coverage. Plaintiff also asserted that the exclusions relied upon by Progressive were invalid in connection with an accident occurring in New York. Progressive opposed plaintiff's motion upon the grounds that, if the policy exclusions were deemed invalid under the New York Insurance Law, plaintiff was only entitled to uninsured motorist coverage up to the New York statutory minimum of $25,000, citing Insurance Law §3420(f)(1). Supreme Court granted plaintiff's motion for summary judgment, but only to the extent of uninsured motorist benefits up to $25,000.

Plaintiff appealed, seeking the policy's $300,000 limit. The Second Department reversed, and granted summary judgment to the plaintiff awarding uninsured motorist coverage up to the policy's stated limit of $300,000. The Court found that the exclusions contained in the Progressive uninsured motorist coverage endorsement "are not permitted by New York law." The Court noted that neither Insurance Law §3420(f)(1), nor any regulations applicable to it, contains any exclusions. "Since the exclusions are 'without the approval or protection of the law'***, they should not be given effect***".

The Court further ruled that, since the policy did not contain a term expressly limiting coverage to the statutory minimum of $25,000, the policy must be read as affording uninsured motorist coverage up to the stated limit of $300,000.

This holding is an example of the strict application of the New York uninsured motorist coverage provisions; any exclusions contained in an out-of-state policy are not enforceable under New York Insurance Law § 3420(f)(1).

Should you have questions regarding the information presented in this alert, please contact Anthony J. Piazza, Chair of the firm's Insurance Coverage & Regulation Practice Area, at (585) 295-4420 or


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