
    Daniel Chmielewski, Plaintiff, v Public Service Mutual Insurance Company, Defendant and Third-Party Plaintiff. Phoenix Insurance Company, Third-Party Defendant.
    Supreme Court, Erie County,
    January 13, 1986
    APPEARANCES OF COUNSEL
    
      Steiner & Blotnik for plaintiff. Nathan Cyperstein for defendant and third-party plaintiff. Mark G. Farrell for third-party defendant.
   OPINION OF THE COURT

Irving Fudeman, J.

The plaintiff allegedly sustained bodily injuries on May 31, 1984, when the motorcycle he was operating came into collision with an unknown hit-and-run vehicle. The defendant, Public Service Mutual Insurance Company, had issued a liability insurance policy to one Henry J. Chmielewski covering the motorcycle and containing the standard uninsured motorist indorsement. The third-party defendant, Phoenix Insurance Company, had issued a liability insurance policy to Henry J. and Adele A. Chmielewski for vehicles not involved in the accident and also containing the standard uninsured motorist indorsement. The plaintiff commenced the action herein, seeking to recover money damages pursuant to the uninsured motorist indorsement contained in the policy issued by the defendant Public Service Mutual Insurance Company. Thereupon, the defendant and third-party plaintiff Public Service Mutual Insurance Company brought its third-party action against the third-party defendant, Phoenix Insurance Company, seeking judgment over, on the basis that the third-party defendant and the defendant are coinsurers of the plaintiff.

The third-party defendant brings this motion for summary judgment dismissing the third-party complaint on the grounds that the defendant and the third-party defendant are not coinsurers of the plaintiff, but rather that the defendant’s policy provides primary coverage for the plaintiff and the third-party defendant’s policy merely affords excess coverage.

Clearly, if the coverage provided by the defendant’s policy is primary, the third-party complaint must be dismissed. Although it was not argued by the third-party defendant, it is equally clear that the third-party complaint must be dismissed even if the defendant and the third-party defendant were coinsurers.

It is expressly provided in paragraph 6 of the "Automobile Accident Indemnification Coverage” in both policies, that in the event of a coinsurance situation, each "company shall not be liable for a greater proportion of any loss to which [the] coverage applies than [its] limit of liability * * * bears to the sum of the applicable limits of liability of’ both policies.

Therefore, in a coinsurance situation, under the terms and conditions of the policy issued by the defendant, Public Service Mutual Insurance Company, the plaintiff would be unable to recover from the defendant more than that defendant’s proportionate share of the total loss. Since the defendant cannot be required to pay to plaintiff more than its proportionate share, there is no basis upon which it can seek judgment over against the third-party defendant. The motion of the third-party defendant is therefore granted.  