Opinion
December 21, 1987
Appeal from the Supreme Court, Orange County (Isseks, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the application to stay arbitration is granted.
The petitioner is seeking to stay the arbitration of an underinsured motorist claim by the respondent, Elizabeth Feduchka, who was listed as a "driver" on the face sheet and the declarations page of an automobile insurance policy which listed only her parents, Elsie and Michael Feduchka, as the "insureds" under the policy. The policy, which was effective as of May 22, 1985, provided underinsured motorist coverage. On August 8, 1985, Elizabeth sustained serious personal injuries while riding as a passenger in an underinsured vehicle. At the time the policy was issued and at the time of the accident, Elizabeth was not living in the same household as her parents.
The policy at issue is not ambiguous and its terms must be construed according to its plain and ordinary meaning (see, Government Employees Ins. Co. v Kligler, 42 N.Y.2d 863; Holzberg v Mutual Life Ins. Co., 104 A.D.2d 972, appeal dismissed 65 N.Y.2d 1025, lv denied 68 N.Y.2d 604). Here, the policy provides, under the uninsured and underinsured provisions, that the appellant will pay all sums which the "insured" shall be legally entitled to recover as damages from the owner of an uninsured or underinsured automobile. "Insured" is defined to include "the named insured and, while residents of the same household, his spouse and the relative of either". Since the respondent was not a resident of her parents' household at the time she sustained injuries, she was excluded from coverage by the clear and unambiguous language of the policy. Thompson, J.P., Lawrence, Weinstein and Rubin, JJ., concur.