IN RE: the Arbitration Between ERIE INSURANCE COMPANY (2008)

Petitioner commenced this proceeding seeking a permanent stay of arbitration and a determination that it does not owe any uninsured motorist benefits to respondent, a patrol officer who was injured while responding to a call with the lights and sirens on her patrol vehicle activated.   Respondent lost control of her patrol vehicle on the expressway while attempting to avoid a collision with an unidentified vehicle that had entered the expressway in front of her patrol vehicle, but it is undisputed that the unidentified vehicle did not make contact with respondent's patrol vehicle.   Petitioner denied coverage based on the lack of physical contact with the unidentified vehicle, whereupon respondent sought arbitration on the issue of her entitlement to uninsured motorist benefits.

 Supreme Court properly granted the petition.   Although respondent concedes that the insurance policy requires physical contact (see Insurance Law § 5217), she nevertheless seeks to expand the meaning of that term to include circumstances such as those presented in this case.   Respondent contends that there should be coverage even in the absence of actual physical contact because she is able to establish through the affidavits of two disinterested eyewitnesses that an unidentified vehicle forced her to take evasive action to avoid the collision, thereby causing her to sustain injuries.   We reject respondent's contention.  “ ‘[P]hysical contact’ occurs within the meaning of [Insurance Law § 5217] when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle” (Matter of Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 329, 574 N.Y.S.2d 927, 580 N.E.2d 399), and the Court of Appeals has consistently held that there must be some physical contact with the unidentified vehicle (see id. at 327-329, 574 N.Y.S.2d 927, 580 N.E.2d 399;  Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116, 118-121, 324 N.Y.S.2d 15, 272 N.E.2d 528;  Motor Veh. Acc. Indem. Corp. v. Eisenberg, 18 N.Y.2d 1, 4-5, 271 N.Y.S.2d 641, 218 N.E.2d 524).  “The goal is to accord every liberal extension to the remedial statute but not to the point of judicially removing the meaning and frustrating the purpose of limiting language deliberately inserted into the statute” (Smith, 29 N.Y.2d at 121-122, 324 N.Y.S.2d 15, 272 N.E.2d 528).

 We reject the further contention of respondent that petitioner waived its right to deny coverage based on its delay in doing so.  “[P]hysical contact goes to coverage, rather than exclusion, ․ [and n]o coverage exists in the absence of the required contact” (Matter of Prudential Prop. & Cas. Ins. Co. v. Hobson, 67 N.Y.2d 19, 21, 499 N.Y.S.2d 637, 490 N.E.2d 504;  see generally Matter of Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188-190, 712 N.Y.S.2d 433, 734 N.E.2d 745).   Inasmuch as there is no coverage here, it cannot be said that petitioner waived the right to deny coverage (see generally Albert J. Schiff Assoc. v. Flack, 51 N.Y.2d 692, 698-699, 435 N.Y.S.2d 972, 417 N.E.2d 84).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: