The Appellate Division, Second Department in Rafellini v. State Farm Mut. Auto. Ins. Co. held that an insurer may not raise an affirmative defense that the insured did not sustain a serious injury within the meaning of Insurance Law sec. sec. 5102(d) and preclude the plaintiff from recovering damages under its supplementary underinsurance motorist portion of his or her policy (see this post and accompanying cases for explanation of SUM coverage).   The Second Department reasoned that (1) the legislative intent, as evidenced by the regulation setting forth the SUM policy language, did not require that the plaintiff meet the serious injury threshold, and (2) the no-fault considerations that prompted the serious injury threshold were not implicated in cases concerning SUM coverage.

I agree with this decision and the Court’s reasoning.  The Court states that it is a case of first impression, and the issue will possibly reach the New York Court of Appeals.

I’m interested in hearing if you agree with the decision’s reasoning.