SUPREME COURT: COUNTY OF CHAUTAUQUA
RICHARD A. MILKS and
KRISTINE D. MILKS,
vs INDEX #H-06121
GLENN-JANKOWSKI AGENCY, INC.
MISERENDINO, CELNIKER, SEEGERT & ESTOFF, P.C.
(Philip Celniker, Esq.
of Counsel) for Plaintiff
LAURENCE D. BEHR, Esq.
Attorney for Defendant
DECISION and ORDER
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
There is no basis for finding that plaintiffs have
demonstrated any actionable wrongdoing defendant.
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
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
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
As a matter of law, there was no duty for Glenn-
Jankowski to advise the MILKS to obtain underinsured
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
The affidavit of Defendant's employee, Judith A.
" 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
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