Preview
FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
GOVERNMENT EMPLOYEES INSURANCE
COMPANY,
PETITION
Petitioner(s)
Index No.:
- against -
Returnable: June 12, 2024
JHOWY GUZMAN,
Respondent(s)
Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY (“GEICO"), by
its attorneys, Law Office of Katie A. Walsh, alleges upon information and belief as follows:
1. That the petitioner is a corporation duly organized and existing under the laws of
a state other than New York, and is authorized to do business in the State of New York.
2. Upon information and belief, at all times pertinent herein, respondent(s) were
residents of the State of New York.
3. Petitioner received a Demand for Arbitration filed by the attorneys for the
respondent on or about April 8, 2024.
4. This demand refers to an insurance policy issued by the petitioner providing
uninsured/underinsured motorist benefits. (A copy of the Demand for Arbitration is annexed as
Exhibit "A"). Petitioner’s policy had an uninsured/underinsured limit in the amount of $25,000
per person and $50,000 per occurrence. (See, a copy of GEICO’s Declarations page, annexed as
Exhibit “B").
5. The Demand for Arbitration alleges that the respondent sustained injuries in an
accident on October 22, 2022, allegedly involving an underinsured motorist. Betsy Toro was the
owner and operator of the offending vehicle. Said vehicle was insured by Allstate Insurance
Company.
6. On or about January 12, 2024, Allstate Insurance Company tendered its entire
policy limit of $50,000 in settlement of three claims. The respondent, Jhowy Guzman received
$20,000. (See, a copy of correspondence from Respondent’s counsel regarding Allstate
Insurance Company global tender dated, January 12, 2024).
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7. Petitioner maintains that the respondent must be permanently stayed from
proceeding to arbitration on the grounds that underinsured motorist benefits have not been
“triggered" under the SUM Endorsement of the Petitioner’s policy.
8. More particularly, Insurance Law section 3420(f)(2)(a) provides as follows:
Any [automobile insurance] policy shall, at the option of the insured, also
provide supplementary uninsured/underinsured motorists [SUM]
insurance for bodily injury, in an amount up to the bodily injury liability
insurance limits of coverage provided under such policy . . . [SUM]
insurance shall provide coverage . . . if the limits of liability under all . . .
insurance policies of another motor vehicle liable for damages are in a
lesser amount than the bodily injury liability insurance limits of coverage
provided by such policy. . ..
[Insurance Law section 3420 (f)(2)(a)]
9. The plain language of Insurance Law § 3420 (f)(2)(a), therefore, provides that
SUM coverage is only triggered when the bodily injury limits of the policy covering the
tortfeasor's vehicle are less than the bodily injury limits of the SUM insurer’s policy. In the
present case, both GEICO and Allstate Insurance Company have third party bodily liability
limits of $25,000 per person/$50,000 per occurrence.
10. Further, no reduction can be made from the coverage available for the tortfeasor’s
vehicle for the payments made to the three passengers in the respondent’s vehicle as they were
“insureds", rather than “other persons", under the GEICO policy. Petitioner’s SUM
Endorsement, which mirrors the language of Regulation 35-D, codified at 11 NYCRR § 60-2,
defines an "insured" as:
(1) you, as the named insured and, while residents of the same household,
your spouse and the relatives of either you or your spouse;
(2) any other person while occupying:
(i) a motor vehicle insured for SUM under this policy; …."
11. Petitioner’s SUM Endorsement defines an "uninsured motor vehicle" as:
[a] motor vehicle that, through its ownership, maintenance or use, results
in bodily injury to an insured, and for which . . . (3) there is a bodily injury
liability insurance coverage or bond applicable to such motor vehicle at
the time of the accident, but; . . . (ii) the amount of such insurance
coverage or bond has been reduced, by payments to other persons injured
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in the accident, to an amount less than the third-party bodily injury
liability limit of this policy.
(See, a copy page 13 of 23 of Petitioner’s policy, annexed as Exhibit “C”
12. The Court of Appeals in Allstate v. Rivera and Clarendon v. Nunez,
___N.E.2d___, NY Slip Op. 04300, Court of Appeals, June 4, 2009, WL 1543764, has expressly
held that the "payments to other persons" that may be deducted from the tortfeasor's coverage
limits for purposes of rendering the tortfeasor "uninsured" under a SUM endorsement do not
encompass payments made to anyone who is an “insured" under the SUM endorsement. In
short, the payments made to the respondent and the passengers in the respondent’s vehicle do not
serve to reduce the bodily injury limits of the offending vehicle to less than the bodily injury
limits of the petitioner’s policy.
13. Inasmuch as both policies provide for bodily injury liability limits of $25,000 per
person/$50,000 per occurence, and there is no reduction available, SUM coverage has not been
triggered. Accordingly, respondent is not entitled to proceed to underinsured motorist arbitration
under the policy issued by petitioner.
14. Petitioner further submits that the respondents are barred from recovering under
paragraph “6" of the petitioner’s SUM endorsement pursuant to 11 NYCRR 60-2.1 (Regulation
35D) and the terms of the GEICO policy.
15. More particularly, page 14 of 23 of the GEICO policy entitled “Maximum SUM
Payment", which essentially mirrors the language set forth in Regulation 35D, provides as
follows:
6. Maximum SUM payments: Regardless of the number of
insureds, our maximum payment under this SUM coverage shall
be the difference between:
(a) the SUM limits; and
(b) the motor vehicle bodily injury liability insurance or bond
payment received by the insured or the insured’s legal
representative, from or on behalf of all persons that may be
legally liable for the bodily injury sustained by the insured.
(See, Exhibit “C", page 14 of 23).
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16. The offending vehicle’s entire bodily injury limit of $50,000 was tendered to
respondents and their passengers in settlement of their claims. Inasmuch, the petitioner is entitled
to an “offset" in the amount of $25,000 there is no coverage available under petitioner’s SUM
endorsement since GEICO’S SUM limit is also $25,000 (See, copy of GEICO’s Declaration
page annexed as Exhibit “B").
17. In short, since the respondents and a passenger in their vehicle received $50,000
in settlement of their claimed injuries, and GEICO’s SUM coverage is also $25,000/$50,000 the
petitioner is entitled to a complete “offset" in said amount, thereby barring the respondents from
proceeding to arbitration under the petitioner’s policy as a matter of law. See, GEICO v. Young,
39 A.D.3d 751, 835 N.Y.S.2d 283 (2d Dept 2007), and Allstate v. Rivera and Clarendon v.
Nunez, 12 N.Y.3d 602, 883 N.Y.S.2d 755, 911 N.E.2d 817 (2009).
18. In the alternative, it is requested that the Court direct the respondent to provide all
relevant medical records and authorizations and to submit to an examination under oath and
physical examinations as required under the insurance contract annexed as Exhibit “C", should it
ultimately be determined that the respondent is entitled to proceed to arbitration.
WHEREFORE, the petitioner requests that an Order be entered permanently staying the
arbitration between the petitioner and the respondent, along with such other and further relief as
to this Court deems just and proper.
DATED: Melville, New York
April 15, 2024
______________________________________
Vincent Leone, Esq.
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ATTORNEY VERIFICATION
Vincent Leone, Esq. an attorney admitted to the practice of law in the Courts of New
York states:
That your affirmant is an attorney at law associated with the Law Office of Katie A.
Walsh, attorneys for the Petitioner herein, an insurance company licensed to do business in the
State of New York.
That your affirmant has read the foregoing Petition and knows the contents thereof, and
that same is true to his/her own knowledge except as to the matters therein stated to be alleged
upon information and belief and as to those matters he/she believes it to be true.
The grounds of affirmant’s belief as to all matters not stated upon affirmant’s knowledge
are as follows: Reports of investigations, conversations, writings, memoranda and other data in
affirmant’s possession.
This verification is made by your affirmant and not by the Petitioner because said
Petitioner is a foreign corporation and your affirmant is an attorney designated by said
corporation for the purpose of initiating this proceeding.
The undersigned affirms that the foregoing statements are true under penalties of perjury
under the laws of New York, which may include a fine or imprisonment, that the following is
true, and I understand that this document may be filed in an action or proceeding in a court of
law.
Dated: Melville, New York
April 15, 2024
______________________________________
Vincent Leone, Esq.
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the
word count limit of 7,000/4,200 words set forth therein. The total number of words in this
Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature
blocks, is 1,320, pursuant to the word count in Microsoft Word, the word-processing system
used to prepare the document.
Dated: Melville, New York
April 15, 2024
________________________________
Vincent Leone, Esq.
Law Office of Katie A Walsh
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Index No.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
GOVERNMENT EMPLOYEES INSURANCE
COMPANY,
NOTICE OF PETITION
Petitioner(s)
TO STAY ARBITRATION
- against -
JHOWY GUZMAN,
Respondent(s)
Law Office of Katie A. Walsh
Attorneys for the Petitioner
GEICO
Office and Post Office Address
2 Huntington Quadrangle, Suite 1N01
Melville, New York 11747
Tel: 516-496-6316
---------------------------------------------------------------------------------------------------------------------
Due and timely service of a copy of the within ___________________ is hereby admitted.
Dated April 15, 2024
Attorney(s) for Government Employees Insurance Company
-----------------------------------------------------------------------------------------------------------------
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Preview
FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS GOVERNMENT EMPLOYEES INSURANCE COMPANY, PETITION Petitioner(s) Index No.: - against - Returnable: June 12, 2024 JHOWY GUZMAN, Respondent(s) Petitioner, GOVERNMENT EMPLOYEES INSURANCE COMPANY (“GEICO"), by its attorneys, Law Office of Katie A. Walsh, alleges upon information and belief as follows: 1. That the petitioner is a corporation duly organized and existing under the laws of a state other than New York, and is authorized to do business in the State of New York. 2. Upon information and belief, at all times pertinent herein, respondent(s) were residents of the State of New York. 3. Petitioner received a Demand for Arbitration filed by the attorneys for the respondent on or about April 8, 2024. 4. This demand refers to an insurance policy issued by the petitioner providing uninsured/underinsured motorist benefits. (A copy of the Demand for Arbitration is annexed as Exhibit "A"). Petitioner’s policy had an uninsured/underinsured limit in the amount of $25,000 per person and $50,000 per occurrence. (See, a copy of GEICO’s Declarations page, annexed as Exhibit “B"). 5. The Demand for Arbitration alleges that the respondent sustained injuries in an accident on October 22, 2022, allegedly involving an underinsured motorist. Betsy Toro was the owner and operator of the offending vehicle. Said vehicle was insured by Allstate Insurance Company. 6. On or about January 12, 2024, Allstate Insurance Company tendered its entire policy limit of $50,000 in settlement of three claims. The respondent, Jhowy Guzman received $20,000. (See, a copy of correspondence from Respondent’s counsel regarding Allstate Insurance Company global tender dated, January 12, 2024). 1 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 7. Petitioner maintains that the respondent must be permanently stayed from proceeding to arbitration on the grounds that underinsured motorist benefits have not been “triggered" under the SUM Endorsement of the Petitioner’s policy. 8. More particularly, Insurance Law section 3420(f)(2)(a) provides as follows: Any [automobile insurance] policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists [SUM] insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy . . . [SUM] insurance shall provide coverage . . . if the limits of liability under all . . . insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy. . .. [Insurance Law section 3420 (f)(2)(a)] 9. The plain language of Insurance Law § 3420 (f)(2)(a), therefore, provides that SUM coverage is only triggered when the bodily injury limits of the policy covering the tortfeasor's vehicle are less than the bodily injury limits of the SUM insurer’s policy. In the present case, both GEICO and Allstate Insurance Company have third party bodily liability limits of $25,000 per person/$50,000 per occurrence. 10. Further, no reduction can be made from the coverage available for the tortfeasor’s vehicle for the payments made to the three passengers in the respondent’s vehicle as they were “insureds", rather than “other persons", under the GEICO policy. Petitioner’s SUM Endorsement, which mirrors the language of Regulation 35-D, codified at 11 NYCRR § 60-2, defines an "insured" as: (1) you, as the named insured and, while residents of the same household, your spouse and the relatives of either you or your spouse; (2) any other person while occupying: (i) a motor vehicle insured for SUM under this policy; …." 11. Petitioner’s SUM Endorsement defines an "uninsured motor vehicle" as: [a] motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which . . . (3) there is a bodily injury liability insurance coverage or bond applicable to such motor vehicle at the time of the accident, but; . . . (ii) the amount of such insurance coverage or bond has been reduced, by payments to other persons injured 2 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 in the accident, to an amount less than the third-party bodily injury liability limit of this policy. (See, a copy page 13 of 23 of Petitioner’s policy, annexed as Exhibit “C” 12. The Court of Appeals in Allstate v. Rivera and Clarendon v. Nunez, ___N.E.2d___, NY Slip Op. 04300, Court of Appeals, June 4, 2009, WL 1543764, has expressly held that the "payments to other persons" that may be deducted from the tortfeasor's coverage limits for purposes of rendering the tortfeasor "uninsured" under a SUM endorsement do not encompass payments made to anyone who is an “insured" under the SUM endorsement. In short, the payments made to the respondent and the passengers in the respondent’s vehicle do not serve to reduce the bodily injury limits of the offending vehicle to less than the bodily injury limits of the petitioner’s policy. 13. Inasmuch as both policies provide for bodily injury liability limits of $25,000 per person/$50,000 per occurence, and there is no reduction available, SUM coverage has not been triggered. Accordingly, respondent is not entitled to proceed to underinsured motorist arbitration under the policy issued by petitioner. 14. Petitioner further submits that the respondents are barred from recovering under paragraph “6" of the petitioner’s SUM endorsement pursuant to 11 NYCRR 60-2.1 (Regulation 35D) and the terms of the GEICO policy. 15. More particularly, page 14 of 23 of the GEICO policy entitled “Maximum SUM Payment", which essentially mirrors the language set forth in Regulation 35D, provides as follows: 6. Maximum SUM payments: Regardless of the number of insureds, our maximum payment under this SUM coverage shall be the difference between: (a) the SUM limits; and (b) the motor vehicle bodily injury liability insurance or bond payment received by the insured or the insured’s legal representative, from or on behalf of all persons that may be legally liable for the bodily injury sustained by the insured. (See, Exhibit “C", page 14 of 23). 3 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 16. The offending vehicle’s entire bodily injury limit of $50,000 was tendered to respondents and their passengers in settlement of their claims. Inasmuch, the petitioner is entitled to an “offset" in the amount of $25,000 there is no coverage available under petitioner’s SUM endorsement since GEICO’S SUM limit is also $25,000 (See, copy of GEICO’s Declaration page annexed as Exhibit “B"). 17. In short, since the respondents and a passenger in their vehicle received $50,000 in settlement of their claimed injuries, and GEICO’s SUM coverage is also $25,000/$50,000 the petitioner is entitled to a complete “offset" in said amount, thereby barring the respondents from proceeding to arbitration under the petitioner’s policy as a matter of law. See, GEICO v. Young, 39 A.D.3d 751, 835 N.Y.S.2d 283 (2d Dept 2007), and Allstate v. Rivera and Clarendon v. Nunez, 12 N.Y.3d 602, 883 N.Y.S.2d 755, 911 N.E.2d 817 (2009). 18. In the alternative, it is requested that the Court direct the respondent to provide all relevant medical records and authorizations and to submit to an examination under oath and physical examinations as required under the insurance contract annexed as Exhibit “C", should it ultimately be determined that the respondent is entitled to proceed to arbitration. WHEREFORE, the petitioner requests that an Order be entered permanently staying the arbitration between the petitioner and the respondent, along with such other and further relief as to this Court deems just and proper. DATED: Melville, New York April 15, 2024 ______________________________________ Vincent Leone, Esq. 4 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 ATTORNEY VERIFICATION Vincent Leone, Esq. an attorney admitted to the practice of law in the Courts of New York states: That your affirmant is an attorney at law associated with the Law Office of Katie A. Walsh, attorneys for the Petitioner herein, an insurance company licensed to do business in the State of New York. That your affirmant has read the foregoing Petition and knows the contents thereof, and that same is true to his/her own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters he/she believes it to be true. The grounds of affirmant’s belief as to all matters not stated upon affirmant’s knowledge are as follows: Reports of investigations, conversations, writings, memoranda and other data in affirmant’s possession. This verification is made by your affirmant and not by the Petitioner because said Petitioner is a foreign corporation and your affirmant is an attorney designated by said corporation for the purpose of initiating this proceeding. The undersigned affirms that the foregoing statements are true under penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the following is true, and I understand that this document may be filed in an action or proceeding in a court of law. Dated: Melville, New York April 15, 2024 ______________________________________ Vincent Leone, Esq. 5 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the word count limit of 7,000/4,200 words set forth therein. The total number of words in this Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 1,320, pursuant to the word count in Microsoft Word, the word-processing system used to prepare the document. Dated: Melville, New York April 15, 2024 ________________________________ Vincent Leone, Esq. Law Office of Katie A Walsh 6 of 7 FILED: QUEENS COUNTY CLERK 04/16/2024 11:13 AM INDEX NO. 708090/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/16/2024 Index No. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS GOVERNMENT EMPLOYEES INSURANCE COMPANY, NOTICE OF PETITION Petitioner(s) TO STAY ARBITRATION - against - JHOWY GUZMAN, Respondent(s) Law Office of Katie A. Walsh Attorneys for the Petitioner GEICO Office and Post Office Address 2 Huntington Quadrangle, Suite 1N01 Melville, New York 11747 Tel: 516-496-6316 --------------------------------------------------------------------------------------------------------------------- Due and timely service of a copy of the within ___________________ is hereby admitted. Dated April 15, 2024 Attorney(s) for Government Employees Insurance Company ----------------------------------------------------------------------------------------------------------------- 7 of 7