STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________

RICHARD A. MILKS and

KRISTINE D. MILKS,

Plaintiff,

vs INDEX #H-06121

GLENN-JANKOWSKI AGENCY, INC.

Defendant.

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MISERENDINO, CELNIKER, SEEGERT & ESTOFF, P.C.

(Philip Celniker, Esq.

of Counsel) for Plaintiff

LAURENCE D. BEHR, Esq.

Attorney for Defendant

DECISION and ORDER

GERACE, J.

Defendant moves for summary judgment. Plaintiffs

Cross-Move for Declaratory Judgment that they were provided

with at least a minimum of $20,000 underinsurance coverage.

Plaintiffs, insurance clients of defendant allege the

agency negligently failed to advise to purchase more

underinsured motorists coverage.

In Downey-v-AllstateInsCo. , 638 F. Supp. 322

(S.O.N.Y. 1986) the court held that there is no common-law

duty of an insurance company or its agent to advise a

client of coverage not already provided for in his or her

policy.

There is no basis for finding that plaintiffs have

demonstrated any actionable wrongdoing defendant.

See CapitalMercuryShirtCorp.-v-ArkwrightMut.

Ins.Co.andJLSGroup, 195 AD 2d 520, 600 NYS 2d 34 (1st

Sept 1993). In Rogers-v-Urbanke, 194 AD 2d 1024, 599

NYS 2d 697 (3 Sept 1993) the Court held that the insurer

could not be held liable where the insureds had conclusive

presumptive knowledge of terms and limits of policy for

over a year prior to accident, and took no action to

increase coverage.

The Court said the agency "had no duty to advise, guide

or direct plaintiffs to obtain coverage other than

requested". Rogers v. Urbanke, Supra at 600.

The question in Milks-v-Glenn-Jankowski, is whether

Mrs. Milks requested an increase in her underinsurance two

weeks prior to her accident of April 8, 1989, as she

claims.

The insurance company, Kemper Ins. Co. takes the

position via its letter of June 23, 1995 (Exhibit B) of

Supplementary affidavit plaintiffs did not have

underinsured motorist coverage for the loss of April 8,

1989. ((See, RoyalIns.Co.ofAmerica-v-Vinceguerra.

561 NYS 2d 969 (A.D. 4th Sept 1990) attached to Exhibit B))

(See, Terwilliger-v-AmericanMotoristsIns.Co., (156 AD

2d 805, 549 NYS 2d 222, (3rd Sept 1989)

In Alicea-v-CityofNewYork, 145 A.D.2d 314, 534 NYS

2d 983 (1Sept 1988) the Court held that, "(a)n insured is

presumed to know that terms of its policy," (Metzger -v-

Aetna Ins. Co., 227 N.Y. 411, 416, 125 N.E. 814).

Mrs. Milks by her own testimony never specifically

requested an increase in Uninsured Motorists Coverage

(which is a higher limit than the $20,000 per accident

which New York Law requires, which would have included

underinsured motorists insurance).

Mrs. Milks states in paragraph #4, of her affidavit

that she specifically requested defendant, Glenn-Jankowski

"to increase my coverage to provide full protection to me

and my family." Unfortunately, this is not a request for

maximum underinsurance.

As a matter of law, there was no duty for Glenn-

Jankowski to advise the MILKS to obtain underinsured

motorists insurance.

The Kemper policy and documents relating to it would

lead one to believe that the uninsured motorists coverage

included underinsured motorists coverage at every coverage

level. Even defendant's counsel read the policy to provide

$20,000 of underinsured motorist coverage in the insurance

policy issued by Kemper to plaintiffs.

He explains he drew this conclusion from his "own

reading of Kemper's form AK355-99-1 (11-87) . . . and "upon

the plaintiffs" pertinent policy declarations . . . which

under coverages & Limits of Liability, shows only a

category for "uninsured motorists', without a separate

category for "underinsured motorists." Form AD35599-1,

first sentence, reads, 'You may choose increased limits

Uninsured Motorists coverage, including underinsured

motorists insurance.'".

The affidavit of Defendant's employee, Judith A.

Barber, recites:

" On the plaintiff's policy, both uninsured

and supplementary uninsured (underinsured)

motorists coverage were included under

'uninsured motorists coverage".

(Barber Affidavit, para 4.

The Court would be prepared to grant plaintiffs'

motion for a declaratory judgment that the Kemper policy

provided them with $20,000 in uninsured/underinsured

coverage, but, unless plaintiffs can establish the company

is a party to the suit through the agent, a declaration by

this Court to that effect does not help them in their

action against the agent.

The motion of defendants for summary judgment is

granted. The Court declares that plaintiffs were provided

with at least a minimum of $20,000 underinsurance coverage

by the Kemper insurance contract.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY.

MAYVILLE, NEW YORK

October ,1995.

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SUPREME COURT JUSTICE

To all Counsel:

Please take notice that a DECISION and ORDER of which the

within is a copy, is duly granted in the above entitled

action on the day of October, 1995, and duly entered in

the office of the Clerk of the County of Chautauqua on the

same date.