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MATTER OF PROGRESSIVE INSURANCE COMPANY v. DILLON

1659N, 115237/03,

68 A.D.3d 448 (2009)

2009 NY Slip Op 8973

889 N.Y.S.2d 583

In the Matter of PROGRESSIVE INSURANCE COMPANY, Respondent, v. MELTON DILLON et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 3, 2009.

The court correctly declined to address respondents' other arguments pending a determination of the issue of underinsured motorist coverage, since estoppel cannot be used to create coverage where none exists, regardless of whether the insurance company timely issued its disclaimer (Wausau Ins. Cos. v Feldman, 213 A.D.2d 179, 180 [1995]). We modify only to redefine the framed issue as indicated. We reject respondents' attempts to...

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