During the past 25 years that we have had the honor and pleasure of writing this column together, we have always endeavored to answer questions of interest to our readers. In this month’s column, we find ourselves asking a question for which we do not have a definitive answerdoes an uninsured motorist (UM) or supplementary uninsured motorist (SUM) insurer actually have standing and/or authority to name the alleged tortfeasor’s purported insurer as a party to the proceeding, in order to obtain a determination regarding the status of that other insurer’s policy, and, if not, does it matter?
Question Presented
Our inquiry into this issue was prompted by a recent posting by Dan Kohane of Hurwitz & Fine, in his LinkedIn “New York Insurance” law blog, where he observed that it is an almost daily occurrence in the Second Department, and, perhaps elsewhere, that an insurer served with a demand for arbitration of a UM claim based upon a denial of coverage by the tortfeasor’s carrier, believing that the tortfeasor is not, in fact, uninsured, brings an application to stay arbitration under Article 75 within 20 days, and names tortfeasor’s carrier as a (proposed) additional respondent in the special proceeding. In Kohane’s words, “It has become the ‘lore’ around the land, and the common law in at least the [Second] Department that it is not only appropriate, but downright mandatory, that the UM carrier add the tortfeasor’s carrier to the mix as a necessary party.” The question asked by Kohane and re-asked by us, is, however, whether this is, in fact, appropriate and correct.
