Eber Bros. Wine & Liquor Corp. v. Firemen's Ins. Co.
| Decision Date | 16 November 1939 |
| Citation | 30 F. Supp. 412 |
| Parties | EBER BROS. WINE & LIQUOR CORPORATION v. FIREMEN'S INS. CO. OF NEWARK et al. |
| Court | U.S. District Court — Southern District of New York |
Max J. Gwertzman, of New York City, for plaintiff.
Hill, Rivkins & Middleton, of New York City (Barton P. Ferris, of New York City, of counsel), for defendants.
This is a motion to strike the third and fourth defenses from the answers of both defendants as being insufficient in law.
The third defense alleges, in substance, that the action is barred by virtue of a provision in the policy of insurance that all actions on the policy must be commenced within 12 months next after the happening of the loss.
The fourth defense alleges, in substance, that the plaintiff is not the real party in interest in that the action is being maintained for and on behalf of Great American Insurance Co.; that the plaintiff was paid for its alleged loss by that company, hence the action is being maintained by a party other than the injured party, in violation of Section 109 of the Insurance Law of the State of New York, Consol.Laws, c. 28.
The plaintiff recovered a judgment against Truck Container, Inc. for the loss of a cargo of liquor. The judgment proved to be uncollectible and subsequently this action was commenced against the defendant, Firemen's Insurance Co. of Newark, the insurer of Truck Container, Inc., and another, pursuant to Section 109 of the Insurance Law.
It is the theory of the defendants that this action is barred because the cargo loss took place on March 29, 1938, the date of the accident and this action was instituted 15 months and 10 days after such loss. The judgment against Truck Container, Inc., was returned unsatisfied June 26, 1939, and this present action was instituted July 9, 1939.
A careful consideration of Subds. 1 and 4 of Section 109 of the Insurance Law, as well as the cases which have construed these provisions leave the court with the impression that the third defense is insufficient in law and should be stricken out.
Section 109 specifically states what a policy of insurance shall contain in order for the same to be valid. It says in part: "* * * unless there shall be contained within such policy a provision * * * and a provision stating that in case judgment against the insured * * * shall remain unsatisfied at the expiration of thirty days from the date of service of notice of entry of judgment upon the attorney for the insured, and upon the insurer, then an action may be maintained by the injured person * * * against the insurer under the terms of the policy * * *".
It is submitted that generally policies of insurance contain a provision substantially like the one above. However, the policy of insurance at bar does not contain such provision, but merely sets forth a limitation period of one year within which to commence suit from the date of loss. The one year statute of limitations has been held to be valid. Brandyce v. Globe & Rutgers Ins. Co., 252 N.Y. 69, 168 N.E. 832.
The next question to determine therefore is when shall this limitation period start to run? Shall it commence from the date of loss (March 29, 1938), as provided for in the policy of insurance or from the date of the recovery of the judgment (June 9, 1939), as provided for in Section 109?
Subdivision 4 of Section 109 says: "A policy issued in violation of this section shall, nevertheless, be held valid but be deemed to include the provisions required by this section, and when any provision in such policy or rider is in conflict with the provisions required to be contained by this section, the rights, duties and obligations of the insurer, the policyholder and the injured person shall be governed by the provisions of this section".
Since there is a conflict between the provisions in the policy and Section 109, the court holds that the rights, duties and...
To continue reading
Request your trial
-
Landau v. Schmitt Contracting Co.
...Co. (8 Cir.), 132 Fed. (2d) 275; The Turret Crown, 297 Fed. 766; The J.L. Luchenbach, 65 Fed. (2d) 570; Eber Bros. Wine & Liquor Corp. v. Firemen's Ins. Co., 30 F. Supp. 412; Cotton Co-op. Asso. v. Yazoo, etc., Ry. Co. (Miss.), 197 So. 828; Automobile Ins. Co. v. Eastern Mchy. Co. (Ohio), 2......
-
Bolton v. Ziegler
...41 F.Supp. 467; Price & Pierce v. Jarka Great Lakes Corp., D.C. W.Mich.1941, 37 F.Supp. 939; Eber Bros., Wine & Liquor Corp. v. Fireman's Ins. Co., D.C.S.D.N.Y.1939, 30 F.Supp. 412; Hamilton v. Pulaski County, 1952, 86 Ga.App. 705, 72 S.E.2d 487; Green v. Johns, 1952, 86 Ga.App. 646, 72 S.E......
-
Landau v. Fred Schmitt Contracting Co.
... ... 766; The J. L. Luchenbach, 65 F.2d 570; Eber Bros ... Wine & Liquor Corp. v. Firemen's Ins ... ...
-
Kossmehl v. Millers Nat. Ins. Co., Chicago, Ill.
... ... J. L. Luchenbach, 65 F.2d 570; Eber Bros. Wine & Liquor ... Corp. v. Firemen's Ins ... ...