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Allstate Insurance Co. v. Roberts11/15/2002
ween a survival (*3)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 (274 AD2d at 347), section 3420 (g), which was enacted over 60 years ago in part "to protect insurers from collusive inter-spousal 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 2002 NY Assembly Bill A 10456), 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."
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