In re the Arbitration between Country Wide Insurance & Eber ( 1984 )

OPINION OF THE COURT

Martin B. Stecher, J.

Petitioner moves for a stay of arbitration. Respondent Eber, while a passenger in an uninsured automobile, was injured in a collision with another automobile which left the scene of the accident. Respondent seeks arbitration pursuant to the uninsured motorist coverage of her family automobile policy. Petitioner opposes arbitration on the ground that the “offending” vehicle, that is, the vehicle neither owned by her family nor in which she was a passenger, having been identified and being insured, deprives respondent Eber of either hit-and-run or uninsured motorist coverage.

It is uncontested that at least one of the automobiles in the accident, the one in which respondent Eber was a passenger, was uninsured. Insurance Law § 167 (2-a) mandates coverage of an insured for damage caused by “an owner or operator of an uninsured motor vehicle”. Respondent is not obligated to bring an action against the other car, but may choose to proceed on her family policy, where, as here, the automobile in which she was a passenger was uninsured. She is not obligated to proceed against a person whom she may not believe to be at fault (see also, Matter of Rosenbaum [American Sur. Co.], 11 NY2d 310, concerning an accident which occurred two years prior to the enactment of Insurance Law § 167 [2-a]).

Accordingly, the application is denied and the petition is dismissed.