Opinion
February 8, 1971
In a proceeding by respondent Allstate Insurance Company to stay arbitration sought by respondents Joseph Luna, Francisco Luna and Lorraine Luna-Vanderhoof upon their claims against Allstate and appellant, Motor Vehicle Indemnification Corporation, in which proceeding the issues of whether the claimants were "insured persons" or "qualified persons" were referred to a Special Referee for hearing and report, the appeal is from a judgment of the Supreme Court, Queens County, dated June 1, 1970, which (1) granted Allstate's motion to confirm the Special Referee's report, (2) stayed the arbitration as against Allstate and (3) adjudged that Joseph Luna, as a "qualified" person, was limited to a plenary action against appellant. Judgment reversed, on the law and the facts, with costs to appellant against Allstate Insurance Company; report of the Special Referee disaffirmed; petition for stay granted as to the claim of Lorraine Luna-Vanderhoof and denied as to the claims of Joseph Luna and Francisco Luna, and arbitration directed to proceed as to the claims of Joseph Luna and Francisco Luna. On January 6, 1969, Allstate issued to Francisco Luna an automobile liability insurance policy for the period from January 6, 1969 to January 6, 1970. The policy contained an "uninsured motorist" indorsement (Insurance Law, § 167, subd. 2-a). The indorsement defined the persons insured as the "named insured and, while residents of the same household, his spouse and the relatives of either" (emphasis supplied). At the time the policy was issued, Francisco's family household at Baldwin, Long Island, consisted of himself and the other two claimants (his minor son, Joseph, and his then wife, Lorraine) and also another child of Francisco and Lorraine. Unquestionably, they were then all insured under the indorsement. In April, 1969 Lorraine left the marital home without Francisco's consent, taking the children and one of Francisco's insured automobiles with her. On June 21, 1969, while Lorraine and Francisco were thus separated due to Lorraine's unilateral action, Joseph sustained personal injuries in an accident involving a hit-and-run motorist. The primary question is whether Joseph was then insured as a third-party beneficiary under the "uninsured motorist" indorsement of the policy; on that date he was physically living at his grandmother's home. If he could not be considered a resident of Francisco's household at that time, then (1) he was no longer an additional "insured" entitled to arbitration of his personal injury claim against Allstate pursuant to the "uninsured motorist" indorsement and (2) he was relegated to a plenary action against MVAIC pursuant to section 618 Ins. of the Insurance Law. In our view, Joseph's rights, as an additional insured under the "uninsured motorist" indorsement of Francisco's policy, were still in effect when he was injured by the hit-and-run motorist. This "uninsured motorist" provision should be liberally construed in favor of a member of the named insured's family (cf. Allstate Ins. Co. v. Jahrling, 16 A.D.2d 501, app. dsmd. 12 N.Y.2d 943; Appleton v. Merchant's Mut. Ins. Co., 16 A.D.2d 361). In our opinion, Joseph, an unemancipated infant, was a resident of his father's household on the date of the accident (cf. Ryall v. Kennedy, 67 N.Y. 379; Fidelity Gen. Ins. Co. v. Ripley, 228 So.2d 238 [La.]). He did not lose this status because his mother removed him from his father's household without his father's consent (cf. Matter of Forbell, 198 Misc. 753, affd. 278 App. Div. 953). The mother could not, by her unilateral act in taking Joseph from his father's residence, abrogate the infant's contract right as a third-party beneficiary (additional insured) under the policy (cf. Kaminsky v. Rich, 10 N.Y.S.2d 503, 504; Nardozzi v. Gooding, 73 N.Y.S.2d 784, affd. 273 App. Div. 823). Therefore, it is our opinion that Joseph at the time of the accident was an additional insured under Francisco's policy with Allstate and was entitled to enforce arbitration thereunder of his claim against the hit-and-run motorist. Francisco, as his father, liable for Joseph's support and entitled to Joseph's services, may obtain arbitration of his claim based thereon against Allstate. However, Lorraine Luna-Vanderhoof is not entitled to arbitration, since she voluntarily left Francisco's household. By doing so, she gave up any rights she might have had as an additional insured under the policy. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.