# Allstate Insurance v. Roberts

> Appellate Division of the Supreme Court of the State of New York · November 15, 2002 · 299 A.D.2d 820

URL: https://www.frixlaw.com/law-library/cases/6090250

## Case

- **Full name:** Allstate Insurance Company v. Eugene Roberts, and Jeannette Robinson, as Administratrix of the Estate of Lucy Mae Roberts
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** November 15, 2002
- **Citations:** 299 A.D.2d 820; 749 N.Y.S.2d 352; 2002 N.Y. App. Div. LEXIS 10888
- **Precedential status:** Published
- **Opinion:** Concurrence by Burns
- **Judges:** Burns
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6090250

## Opinion text

Burns, J.
(concurring): I concur in the result reached by the majority because Insurance Law § 3420 (g) specifically excludes coverage with respect to “any liability of an insured because of death of or injuries to his or her spouse” (id. [emphasis added]; see Black v Allstate Ins. Co., 21A AD2d 346; Government Empls. Ins. Co. v Pagano, 251 AD2d 452, 453-454 ). As the majority notes, there is no distinction in the plain language of the statute between a survival cause of action for the conscious pain and suffering of decedent brought by her estate and a wrongful death cause of action pursuant to EPTL 5-4.1 brought by her estate for the benefit of her children. As the First Department noted in Black (21A AD2d at 347), section 3420 (g), which was enacted over 60 years ago in part “to protect insurers from collusive interspousal claims,” results in “literally millions of married New York drivers [being] unaware that their automobile liability insurance policy, while providing coverage for every other passenger or person injured in an accident caused by the driver’s negligence, does not provide any coverage when the injured passenger is their spouse.” Insurance Law § 3420 (g) was recently amended to require insurance carriers to offer their insureds supplemental spousal liability insurance for an additional premium (see L 2002, ch 584), thereby allowing insureds the opportunity to fill that gap in coverage. However, where such supplemental spousal coverage has not been purchased, Insurance Law § 3420 (g) continues to exclude a wrongful death cause of action pursuant to EPTL 5-4.1 on behalf of the children of the deceased spouse even though that section of the Insurance Law would not preclude coverage for such children if they were injured in the same accident. Nevertheless, as the First Department further noted in Black (274 AD2d at 346), “complaints about alleged unfairness [based on Insurance Law § 3420 (g)] * * * are best addressed to the Legislature, which is the body empowered to remedy any inequities in the statute.” Present — Pine, J.P., Wisner, Hurlbutt, Scudder and Burns, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6090250. Public record. Not legal advice.