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Serious Injury Requirement Imposed In Lawsuit Based On Out-Of-State Uninsured Motorist Policy
By: Charles W. Benton, Esq.

FOR THE DEFENSE


Serious Injury Requirement Imposed In Lawsuit Based On Out-Of-State Uninsured Motorist Policy

By: Charles W. Benton, Esq.
Bruno, Gerbino & Soriano, LLP
Melville, New York


In Scotland v. Allstate, 2005-00316 QC, the Appellate Term, Second Department discussed what state’s law should be applied when an uninsured motorist policy written outside of New York is invoked in a New York lawsuit involving a New York accident.

The plaintiff in Scotland had secured a Virginia auto insurance policy which included an uninsured motorist policy endorsement. Subsequent to the issuance of the policy, the plaintiff moved to New York and was involved in an automobile accident in Queens County. The plaintiff sued Allstate under the uninsured motorist provisions of that policy. Allstate, in answering the lawsuit, included in its answer several affirmative defenses invoking the “serious injury” threshold requirement of Insurance Law Section 5102(d). Plaintiff moved to dismiss those affirmative defenses based on the “serious injury” threshold and the lower court denied the motion. The plaintiff then appealed.

In affirming the lower court order denying plaintiff’s motion to dismiss the “serious injury” threshold defenses promulgated by Allstate, the Appellate Term, Second Department found that a proper legal analysis of an uninsured motorist benefits claim is a mixture of tort and contract law. Payment of benefits under an uninsured motorist policy provision depends upon the uninsured motorist’s tort liability to the insured. The Virginia uninsured motorist endorsement in the policy at issue required payment to the insured of all “sums that he is legally entitled to recover”.

The Appellate Term applied an “interest analysis” to determine whether the New York “serious injury” requirement should be applied in this case. “Interest analysis” is an examination of what jurisdiction has the greater interest in having its law applied in a particular factual/legal situation. The Scotland court found that New York’s “serious injury” threshold involves issues of loss allocation. The court further found that “interest analysis” properly involves an analysis of the place where a tort occurs and the domicile of the litigants involved. In the Scotland case, the accident happened in New York and the plaintiff, even though he had procured an uninsured motorist policy when living in Virginia, had moved to New York at the time the accident occurred. The Court also pointed out that the lawsuit had been venued by the plaintiff in Queens County based upon the plaintiff’s present residence.


The Appellate Term in Scotland emphasized the strong policy considerations underlying New York’s “serious injury” threshold. The “serious injury” requirement, in the Court’s view, was designed and enacted to reduce the number of litigated automobile personal injury accidents in New York by keeping minor cases out of the court system. In the Court’s view, if New York’s “serious injury” threshold was not to apply in this case, the underlying rationale of the New York law on “serious injury” would be seriously eroded.

Scotland v. Allstate extends the “serious injury” threshold requirement to uninsured motorist policies underwritten in another state where the plaintiff is a New York resident at the time of the accident and the accident occurs in New York. In doing so, the Scotland court emphasized the strong public policy considerations underlying its decision.

Editors Note: Charles W. Benton is a graduate of Fordham University School of Law and an associate of the Appeals Division at Bruno, Gerbino & Soriano, LLP, located in Melville, New York.

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