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CARLINO v. LUMBERMENS MUT.

141 A.D.2d 285 (1988)

Annunziata Carlino et al., Respondents, v. Lumbermens Mutual Casualty Company, Appellant, and Wesley A. Carr, Respondent, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

November 15, 1988

Attorney(s) appearing for the Case

Noonan, Mahoney & Yunker (Donald Mahoney of counsel), for appellant.

Walsh, Roberts & Grace (Gerald Grace, Jr., of counsel), for Annunziata Carlino and another, respondents.

Maghran, McCarthy & Flynn (Kevin Ketchum of counsel), for Wesley A. Carr, respondent.

DENMAN, BOOMER and DAVIS, JJ., concur with BALIO, J.; CALLAHAN, J. P., dissents and votes to affirm, in an opinion.

BALIO, J.

We hold that where an insurer has issued two separate policies to spouses residing in the same household and where both policies apply to the same accident, each automobile liability insurance policy may provide that the insurer's maximum liability shall be limited to the higher limit of either policy, rather than the cumulative limits of both policies.

FACTS

On December 6, 1983,...

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