In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated November 15, 2010, which, after a framedissue hearing, denied that branch of the petition which was to permanently stay the arbitration and directed the parties to proceed to arbitration. By decision and order on motion dated December 20, 2010, this Court granted the petitioner’s motion to stay arbitration pending hearing and determination of this appeal.

ORDERED that the order is affirmed, with costs.

On November 12, 2005, the respondent Wayne Vanderpool, a police officer, attempted to execute an arrest warrant on additional respondent Yvette Pullum at her home. Rather than submit to the arrest, Pullum got into her car and drove away. In the process, Pullum struck and injured Vanderpool with her vehicle. Pullum eventually pleaded guilty to assault in the second degree (see Penal Law § 120.05[3]) with respect to the incident. Penal Law § 120.05(3) contains as an element that the defendant intended to prevent a police officer from performing a lawful duty and thereby caused the officer to suffer physical injury. It does not contain as an element that the defendant intended to cause physical injury to the officer. In addition, at her plea proceeding, Pullum did not admit that she intended to cause physical injury to Vanderpool.

Vanderpool eventually filed a claim with his automobile insurance carrier, Progressive Northeastern Insurance Company (hereinafter the petitioner), seeking supplemental underinsured motorist coverage under the supplemental uninsured/ underinsured motorist (hereinafter SUM ) endorsement on his automobile insurance policy. The petitioner disclaimed coverage on the ground that Vanderpool’s injuries were not caused by an “accident,” as that term is used in the SUM endorsement, and Vanderpool sought arbitration.

The petitioner commenced this proceeding, inter alia, to permanently stay arbitration. After a framed-issue hearing, the Supreme Court denied the petition and directed the parties to proceed to arbitration. The petitioner appeals.

The Court of Appeals recently held in State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349) that, for the purposes of a SUM endorsement, an occurrence should be viewed from the perspective of the insured, rather than of the tortfeasor. When, from the insured’s perspective, the occurrence was ” unexpected, unusual and unforeseen'” (id. at 355 [some internal quotation marks omitted], quoting Miller v Continental Ins. Co., 40 NY2d 675, 677 [internal quotation marks omitted]), it qualifies as an “accident.” Thus, the Court held in Langan that, even though the holder of SUM coverage was the victim of an intentional assault, there had been an “accident” because the assault was unexpected or unintended from the insured’s perspective, and SUM coverage was triggered (see Langan, 16 NY3d at 355). Here, from Vanderpool’s perspective, his encounter with Pullum’s vehicle was unexpected, unusual, and unforeseen. Consequently, whatever Pullum’s intent, the occurrence was an “accident” within the meaning of the SUM endorsement of Vanderpool’s policy. Consequently, the order denying the petition and directing the parties to proceed to arbitration was properly affirmed (id. at 356-357).

When Employer Has State Fund’s Unlimited Liability Coverage, Excess Liability Coverage is Never Triggered

Merchants Mut. Ins. Co. v New York State Ins. Fund

This was an appeal from a judgment of the Supreme Court, Erie County (Donna M. Siwek, J.), which granted Merchants’ motion for summary judgment and awarded money damages to plaintiff. The Appellate Division affirmed.

Merchants commenced this action seeking to recover funds from New York State Insurance Fund based on the Fund’s failure to indemnify Jerrick Waterproofing Co., Inc., a third-party defendant in the underlying wrongful death action. Jerrick Waterproofing held an insurance policy issued by defendant Fund that provided unlimited employer’s liability coverage for employees subject to the Workers’ Compensation Law, and Jerrick Waterproofing also held a commercial umbrella insurance policy issued by plaintiff Merchants that provided excess coverage upon the exhaustion of all other insurance policy limits.

The plaintiff in the underlying wrongful death action sought damages for injuries sustained by the decedent, a construction worker employed by Jerrick Waterproofing, when he fell from scaffolding on a work site where T & G Contracting, Inc. was the general contractor and Jerrick Waterproofing was a subcontractor. The wrongful death action against T & G and the owners of the property on which the accident occurred settled for approximately $2.2 million. All of the parties to the instant action contributed toward that settlement.

“Defendant appeals from an order and judgment granting plaintiff ‘s motion for summary judgment on the complaint against defendant and awarding plaintiff damages in the amount of $600,000. We conclude that Supreme Court properly granted the motion. Contrary to its contention, defendant was obligated to provide unlimited coverage for the accident, despite an exclusion in its policy for liability assumed under a contract.” “Although T & G was granted summary judgment on its contractual indemnification cause of action against Jerrick Waterproofing in the underlying third-party action, T & G’s common-law indemnification cause of action in that third-party action was still viable at the time of the settlement. The fact that T & G’s recovery against Jerrick Waterproofing could have been based upon a contract of indemnity does not preclude the existence also of a common-law right to indemnity. (Aetna Cas. & Sur. Co. v Lumbermens Mut. Cas. Co., 136 AD2d 246, 248, lv denied 73 NY2d 701; see O’Dowd v American Sur. Co. of N.Y., 3 NY2d 347, 353).”

“Where, as here, the facts of the case are such that the insured’s liability exists on one theory as well as another and one of the theories results in liability within the coverage, the insured may avail itself of the coverage (Hawthorne v South Bronx Community Corp., 78 NY2d 433, 438).” “Defendant further contends that the otherwise unlimited coverage provided by its policy was limited by language on the declarations page of the excess insurance policy issued by plaintiff, indicating that defendant’s policy limit for bodily injury caused by an accident was $100,000. We reject that contention. An excess insurer may be bound by a misidentification of an underlying insurer’s liability limit (see generally Liberty Mut. Ins. Co. v Insurance Co. of State of Pa., 43 AD3d 666, 668). Here, however, the declarations page of the policy issued by plaintiff unambiguously excludes coverage in situations where the Workers’ Compensation Law is applicable, and the language with respect to defendant’s policy limit for bodily injury caused by an accident is applicable only to employees not subject to the Workers’ Compensation Law.” “Thus, defendant was obligated to provide unlimited coverage to Jerrick Waterproofing with respect to its liability for decedent’s accident, and the obligation of plaintiff to provide excess coverage was never triggered.”