Concurring in the Result.
I concur in the result reached by the Court but would not base the decision solely on the determination that Djurkovic is insured. If Djurkovic is insured, Ryals cannot recover, as determined by the Court. If Djurkovic were treated as uninsured, Ryals still cannot recover under the terms of the State Farm uninsured motorist provision:
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
Even if Djurkovic were treated as uninsured, uninsured motorist benefits are only payable when the insured motorist, Ryals, is “legally entitled” to recover from the driver of an uninsured motor vehicle. “Legally entitled” means that an insured must be able to bring a claim against the driver of the uninsured vehicle. It must be possible to hold the uninsured motorist legally liable to the insured claimant before that claimant may seek uninsured motorist benefits under the State Farm policy. If an insured is not legally entitled to collect from the driver of an uninsured vehicle, uninsured motorist benefits are not payable. On the other hand, if the driver of the other vehicle is insured, the State Farm uninsured motorist provision is not applicable.
Under New York’s no-fault laws, Djurkovic would not be legally liable to Ryals. Consequently, Ryals was not entitled to collect any amounts from Djurkovic. Under New York’s *308no-fault system, an individual involved in an automobile accident may not sue another party to that accident and collect for non-economic loss, except in the ease of a “serious injury.”
New York Insurance Law Section 5104 governs causes of action for personal injury that occur in New York and provides in pertinent part:
Causes of action for personal injury
(a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-eeonomic loss, except in the case of a serious injury, or for basic economic loss. The owner, operator or occupant of a motorcycle which has in effect the financial security required by article six or eight of the vehicle and traffic law, or which is referred to in subdivision two of section three hundred twenty-one of such law, shall not be subject to an action by or on behalf of a covered person for recovery for non-economie loss, except in the case of a serious injury, or for basic economic loss.
N.Y. Insurance Law, § 5104.
A “serious injury” is one that entails a:
significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such persons’ usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
N.Y. Insurance Law, § 5102(d).
Absent a showing that Ryals’ injuries exceed the threshold level of seriousness, Djurkovic is immune from suit. New York Insurance Law § 5104. In this case Ryals is not entitled to collect from Djurkovic, as an alleged uninsured motorist, unless the claim is for “serious injuries” under New York’s no-fault law. Ryals does not claim more than non-serious personal injuries. Absent such a claim, Ryals could not maintain an action against Djurkovic and could not collect any damages from him. It follows that since Ryals is not “legally entitled” to collect from Djurkovic, uninsured coverage is not applicable even if Djurkovic were treated as uninsured under Idaho law. The result is the same whether Djurkovic is insured or not.