STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

JERRY R. KUNTZ AND

NANCY L. KUNTZ,


Plaintiffs,


-vs- Index #H-09175


NATIONAL GRANGE MUTUAL

INSURANCE COMPANY,


Defendant.


 



JAMES J. MORAN, P.C.

(Michael Braisted, Esq.

of Counsel) for Plaintiffs


KOREN, BERTELL & HOEY

(John T. Bertell, Esq.

of Counsel) for Defendant



DECISION AND ORDER



GERACE, J.


Both parties move for summary judgment in this declaratory judgment action brought to determine whether a snowmobile is an "uninsured motor vehicle". After Plaintiff exited her automobile to get mail from her mailbox, she was run over by an uninsured, unregistered snowmobile.


Defendant denied coverage under the uninsured motorist

policy because it determined that snowmobiles were excluded under C(4)(4) of the policy which excludes vehicles operated on rails or crawler treads.


Part C, Uninsured Motorist Coverage in the policy provides that "Uninsured motor vehicle" means a land motor vehicle or trailer of any type" but does not include "any vehicle or equipment: "operated on rails or crawler treads".


Plaintiff contends that the language relied upon by

Defendant does not encompass snowmobiles, or at best, is

ambiguous. This Court agrees.


The papers do not include the entire policy, but it

appears that the V&T is referred to in the bodily injury section to exclude snowmobiles, but, snowmobiles are not specifically referred to in the uninsured motorist section. The carrier drew the contract. It had already used the term "snowmobiles". If it intended to exclude these vehicles from the uninsured portion of the policy, it could have done so; and, it should have done so in "clear and unmistakable language", SEABOARD V GILLETTE, 64 NY2D 304 (1984); PILIERO V. ALLSTATE, 12 AD2D 130, (2nd Dept, 1960).


Moreover, defendant knew Section 2221 of the Vehicle and

Traffic law defines a snowmobile as "Any self-propelled vehicle designed for travel on snow or ice, steered by skis or runners and supported in whole or in part by one or more skis, belts or cleats." There is no reference to rails or crawler treads."


There is no ambiguity on the facts in this case. Defendant even refers to plaintiff's deposition in which she knew snowmobiles operated with "ski's and a track". There is nothing in defendant's papers that remotely suggest the snowmobile in this case was propelled on rails or crawler treads.


The motion of defendant for summary judgment is denied,

with $100.00 costs to plaintiff. The motion of plaintiff for

summary judgment is granted, with full statutory costs, to

plaintiff.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY.


Dated: April 28, 1995

Mayville, New York



 

JOSEPH GERACE

Justice of Supreme Court