One of the most significant provisions in the Supplementary Uninsured/Underinsured Motorist Endorsement—New York (the SUM Endorsement)—promulgated and adopted by the then-entitled New York State Insurance Department, now known as the Department of Financial Services) as Regulation 35-D, effective Oct. 1, 1993 (see 11 N.Y.C.R.R. §60-2.3, et seq., amended most recently on May 11, 2018; Aug. 1, 2017; June 28, 2017; and April 16, 2013.), is the “Condition,” currently set forth in paragraph 5(b), which has become known as the “offset” or “reduction in coverage” provision, and provides, as follows:

“Regardless of the number of insureds, our maximum payment under this SUM endorsement shall be the difference between:

(a) the SUM Limits; and

(b) the motor vehicle bodily injury liability insurance or bond payments received by the insured or the insured’s legal representative, from or on behalf of all persons that may be legally liable for the bodily injury sustained by the insured.”

Notice the singular nature of the italicized language above. Take note as well that the definition of the word “Insured” in the SUM Endorsement—also in the singular—clearly recognizes that there can and may be more than one insured making a claim under the SUM Endorsement. Yet, the reference in the offset/reduction in coverage provision was not written in the plural, or even in the alternative, such as “the insured or other person making claim” (a phrase that appears several times in the “Notice and Proof of Claim” Condition of the SUM Endorsement [¶ 2]). [Condition 2 of the SUM Endorsement includes the following pertinent provisions: “As soon as practicable, the insured or other person making claim shall give us written notice of claim under the SUM coverage;” “As soon as practicable after our written request, the insured or other person making claim shall give us written proof of claim …;” “The insured and every other person making claim hereunder shall, as may reasonably be required, submit to examination under oath …”) (emphasis added).] Instead, the drafters of the Regulation 35-D SUM Endorsement chose specifically not to use such expansive language in the offset/reduction of coverage section, but, rather, to refer (as they did in numerous other provisions in the Endorsement) to each insured/claimant singularly and individually.

Question Presented