26 Misc. 2d 513 | N.Y. Sup. Ct. | 1960
Petitioner’s application to stay arbitration is denied (see Matter of Royal Ind. Co. v. McMahon, 10 A D 2d 926; Matter of Bankers & Shippers Ins. Co. [Schaefer], 10 A D 2d 573, motions for leave to appeal denied 10 A D 2d
The question involved in this proceeding is one that has for some time vexed insureds who have become involved in accidents with uninsured automobiles. The cases have pointed up the extreme difficulty encountered by an insured in the varying factual situations in establishing that the other automobile causing him the damage was uninsured. It would seem, under the circumstances, that should there exist any ambiguity in the uninsured indorsement regarding the scope of the arbitration, then such ambiguity should be resolved against the petitioner insurer since it prepared the policy (Taylor v. United States Cas. Co., 269 N. Y. 360; Gerka v. Fidelity & Cas. Co., 251 N. Y. 51; Marcus v. United States Cas. Co., 249 N. Y. 21).
With respect to the prior declaratory judgment action brought by respondents, the papers do not fully explain the circumstances
It is quite apparent that respondents at all times have sought some tribunal in which to resolve the question whether or not the automobile which caused them damage was insured or uninsured. In the declaratory judgment action petitioner took the position that no controversy between the parties even existed and now it seeks to take the position that by the commencement of the said action respondents have intentionally waived or abandoned a known right. Such an inconsistent position on the part of the petitioner cannot be sustained.