34 A.D.2d 1010 | N.Y. App. Div. | 1970
In a proceeding to confirm an award in arbitration, petitioner appeals from so much of an order-judgment of the Supreme Court, Kings County, dated October 19, 1969, as (1) granted respondent’s cross motion to modify the award so as to reduce the principal amount thereof from $10,000 to $8,000; (2) upon petitioner’s motion for reargument, adhered to said original decision; and (3) constituted a money judgment reflecting said reduction. Order-judgment modified, on the law and the facts, (1) by striking from the first decretal paragraph thereof everything after the words that respondent’s cross motion “herein be and is” (i.e., “granted”, etc.) and substituting therefor the word “denied”; (2) by striking from the second decretal paragraph thereof the words “and upon such reargument the Court adheres to its original decision of June 5, 1969 ” and substituting therefor the words “ and the motion of the petitioner is granted insofar as it is to confirm the award of the arbitrator in the sum of $10,000 plus the administrative fees and expenses of the American Arbitration Association”; (3) by striking from the third decretal paragraph thereof everything after the words “ that the Arbitrator’s $10,000 award ” and substituting therefor the following: “and his award for such fees and expenses be confirmed”; and (4) by striking from the fourth decretal paragraph thereof the following: “Eight Thousand ($8,000) Dollars” and substituting therefor the following: “Ten Thousand ($10,000.00) Dollars”. As so modified, order-judgment affirmed, with $10 costs and disbursements to appellant. Petitioner, while driving his wife’s automobile, was involved in an accident with the automobile of a hit-and-run motorist. As a result of the accident he suffered severe personal injuries and sustained extensive medical, surgical and hospital expenses and great loss of wages. 'Subsequently, he made claim against the respondent insurance carrier under the uninsured motorist’s provisions of the automobile liability insurance policy issued to his wife by the carrier. The claim proceeded to arbitration and thereafter petitioner received an award of $10,000, the maximum allowed both by law and pursuant to the policy’s amendatory indorsement relating to protection afforded an insured against uninsured motorists. The record indicates that his total damages for bodily injuries, including special damages for medical and hospital expenses and loss of wages, greatly exceeded $10,000. At Special Term, the carrier succeeded in reducing the $10,000 award by the $2,000 it had paid petitioner previously under the medical payment provision (Section II [Coverage B]) of the policy. Petitioner’s medical, surgical and hospital expenses, as a result of the accident, greatly exceeded $2,000. However, $2,000 was the limit of the carrier’s liability for medical payments to petitioner under the policy. On this appeal, the carrier argues that the record clearly shows that the $2,000 it paid to petitioner for some of his medical bills was included in the arbitrator’s award and therefore the reduction was proper. Petitioner asserts, inter alia, that the fact that the carrier reimbursed him for some of the medical expenses amounting to $2,000 does not mean (1) that anything for such expenses was included in the award and (2) that the $2,000 must be deducted from the award as a duplicate payment. The respondent carrier’s policy provided in part as follows: (1) Under Section II (Captioned “Expenses For Medical Services” [.Coverage B]), that the carrier shall pay up to $2,000 to an insured and each relative injured while occupying the insured vehicle: “ all reasonable expenses incurred within one year from the date of the accident for necessary medical, surgical,