The Office of General Counsel issued the following informal opinion on July 12, 2001, representing the position of the New York State Insurance Department.
RE: Notice of Claim to Self-insurer and Demand for Arbitration
1. Is an occupant who is injured in a police vehicle owned by his employer, the City of ABC ("City"), and which vehicle was struck by an uninsured motor vehicle, required to file a notice of claim with the City prior to making a claim for Uninsured Motorists ("UM") coverage?
2. May a claimant demand arbitration against a self-insurer?
1. Yes. N. Y. General Municipal Law §50-e (McKinney 2000) requires that a written notice of claim based on a tort action against a public corporation such as the City be filed within 90 days after the claim arises, subject to application for leave to serve a late notice.
On June 12, 2000, your client, a City police officer riding as a passenger in a police vehicle owned by the City, was seriously injured when his automobile was hit in the rear by an uninsured motor vehicle.
The inquirers law firm, which was retained recently, sent a written communication to the City Corporation Counsels Office that the inquirers client would be filing a claim for UM benefits. The Citys independent claims adjuster informed the inquirer that the City was a self-insuring entity carrying the required minimum $25,000 /$50,000 UM coverage. Said adjuster advised that claims for UM benefits made to the City would be governed by the N. Y. General Municipal Law §50-e (McKinney 2000). It is the inquirers position that the rules of N.Y. Comp. Codes R. & Regs. tit. 11 Part 60-2.4 (1999)(Regulation 35-D) should govern all claims procedures, including a right to submit a claims dispute to the arbitration system established under that regulation.
The Department disagrees with the inquirers position that N. Y. Codes R & Regs. tit. 11 Part 60-2.4 (1999) (Regulation 35-D) controls this situation. That Regulation is limited to endorsements containing Supplementary Uninsured/Underinsured Motorists coverage, which is inapplicable in this matter. Instead, this matter is one of making a claim for UM coverage.
Because the City is a self-insuring entity which must be financially responsible under N. Y. Vehicle and Traffic Law §§ 311 and 316 (McKinney 2000), it must carry the same minimum $25,000/$50,000 UM coverage required pursuant to said statutes and N.Y. Ins. Law § 3420 (f) (1) (McKinney 2000).
However, the lack of an actual insurance policy with a UM endorsement means that a claimant does not have a right to demand arbitration under the terms of the UM endorsement.
Therefore, claims to the City for UM benefits are governed by N. Y. General Municipal Law § 50-e (McKinney 2000). In the inquirers factual situation, the notice it sent to the Corporation Counsel, if considered to constitute proper notice, was still untimely under that statutes 90-day statute of limitations. Under the proper circumstances, an application for leave to serve a late notice may be made to the court, pursuant to N.Y. General Municipal Law § 50-e(5) (McKinney 2000).
For further information, you may contact Associate Attorney Jeffrey A. Stonehill at the New York City office.