Plaintiff moves to confirm the arbitrator's award dated January 7, 2006 concerning the supplementary uninsured motorist endorsement of the petitioner's policy.

Prior hereto the petitioner had made a motion to vacate the arbitrator's decision dated March 2, 2005 awarding $17,000.00 to respondent. Petitioner argued that at the arbitration hearing it learned for the first time there was another entity involved in the motor vehicle accident and that said entity settled with the respondent for $25,000.00.

This Court in an order dated August 31, 2005 granted petitioner's motion to vacate the award and remanded the case back to the arbitrator to consider the $25,000.00 prior settlement with the non-party.

The arbitrator, Howard Bushin, then reissued another decision finding respondent is entitled to zero (0) dollars "in view of the fact that claimant has already received the sum of $25,000.00 from the other vehicle involved in this accident, the respondent [State Farm] is entitled to a set off in said amount."

The respondent cross moved to vacate the arbitrator's second decision of January 7, 2006 and affirm the arbitrator's original decision of March 2, 2005.

It is respondent's contention that the second award of January 7, 2006 by the arbitrator, [*2]without a hearing, finding the petitioner is entitled to a set-off of $25,000 from a "non-negligent tortfeasor" is irrational as a matter of law and should be vacated. The arbitrator specifically found the uninsured driver to be negligent, and omitted any finding of the settling non-party. Respondents automobile policy with petitioner provides as follows:

"The maximum amount payable under this coverage shall be

the policy's limit for this coverage reduced and thus offset by

motor vehicle bodily injury liability insurance policy or bond

payments received from, or on behalf of, any negligent party

involved in the accident, as specified in the SUM endorsement".

(emphasis supplied).

Respondent argues since the arbitrator did not specifically find the settling non party to be negligent this Court should assume him not to be negligent and therefore the $25,000.00 prior settlement should not be considered as a set-off.

Accordingly, this Court finds there to be no determination whether the settling non party was negligent or not, nor does this Court find the arbitrator's decision of January 7, 2006 to be

irrational.

Accordingly, the petitioner's motion to confirm the January 7, 2006 arbitration award of zero (0) dollars is granted. Respondents' cross motion to vacate the award and confirm the March 2, 2005 award is denied.

This shall constitute the decision and order of the Court.

E N T E R,

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J. S. C.