[U] Fireman's Fund Insurance Co. V. Wisham

In this special proceeding pursuant to CPLR 7503 to permanently stay arbitration of an uninsured motorist claim, the Court is called upon to interpret the term "uninsured motor vehicle" for purposes of Insurance Law §§ 3420(f)(1) and (f)(2), and Regulation 35-D of the Regulations of the Department of Insurance (11 NYCRR 60-2.0 et seq.) (hereinafter "Regulation 35-D"). Specifically, the Court is asked to determine whether a vehicle that is covered by a liability insurance policy with a $250,000 deductible is rendered an "uninsured motor vehicle" by the insolvency of the insured. The issue appears to be one of first impression. Taking into account the statutory scheme, pertinent legislative history and relevant case law, the Court concludes that such a vehicle is an "uninsured motor vehicle," for purposes of Insurance Law § 3420(f)(2) and Regulation 35-D but not Insurance Law § 3420(f)(1). Accordingly, for the reasons set forth below, petitioner's motion is denied.