Beck v. Renahan

• Decision Date: 27 April 1965
• Citation: 46 Misc.2d 252,259 N.Y.S.2d 768
• Parties: Betty B. BECK and Luther Beck, Plaintiffs, v. Lawrence A. RENAHAN and Eugene M. Fuhrer, Defendants.
• Court: New York Supreme Court

Page 768

259 N.Y.S.2d 768

46 Misc.2d 252

Betty B. BECK and Luther Beck, Plaintiffs, v. Lawrence A. RENAHAN and Eugene M. Fuhrer, Defendants.

Supreme Court, Trial Term, Nassau County, Part X.

April 27, 1965.

Harry J. Pasternak, New York City, for plaintiffs, Herman Yellon, Mineola, of counsel.

Patrick F. Adams, Mineola, for defendant Fuhrer, Joseph P. Carey, Mineola, of counsel.

McCarthy & McGrath, New York City, for defendant Renehan, Gerald T. Kelly, New York City, of counsel.

FRANK A. GULOTTA, Justice.

The motion for judgment on the claim over herein by the owner of the automobile against the operator, which was left with the court for decision, is based upon the familiar right of indemnity which one tort feasor has against another, where the former is held liable vicariously for the active wrongdoing of the latter, and without any fault on the part of such owner. (Traub v. Dinzler, 309 N.Y. 395, 131 N.E.2d 564).

In pronouncing such a judgment, the court is bound to take cognizance of the realities of the situation and not to grant a judgment which, on all the facts, a party is not entitled to. Here the Royal Indemnity Company, the insurance carrier for the owner Fuhrer, seeks to divorce itself from involvement in the claim over so as to gain an advantage which it is not entitled to.

In the litigation it did, as it had the right to, deny Fuhrer's responsibility for the accident on the ground that Renehan had no permission to use the Fuhrer automobile. The jury's verdict against both Fuhrer and Renehan in the sum of $81,685. conclusively determined that issue adversely to that contention. Since Royal was in complete charge of the defense in this case, that verdict is as binding on Royal as it is on Fuhrer, as a collateral estoppel. Consequently Renehan is an 'Insured' under the Fuhrer policy, a specimen copy of which was submitted to the court together with counsel's statement that the limits are $100,000 and $300,000.

The policy (Court Ex. 1) reads:

'Part I--Liability.

Coverage A--Bodily Injury Liability;

Coverage B--Property Damage Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by any person;

B. injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage';

arising out of the ownership, maintenance or use of the owned automobile * * *.'

'Persons Insured

* * *

* * *

(a) With respect to the owned automobile,

(1) the named insured and any resident of the same household,

(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured; * * *

'Definitions

* * *

* * *

'insured' means a person or organization described under 'Persons Insured';

* * *'

The policy also provides for subrogation as follows:

'12. In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.'

If the court were to adopt Royal's view, we would have the spectacle of the insurance company paying a judgment against one assured and then by subrogation collecting it from another assured for whom it is equally bound to pay the same judgment.

As is stated in Richards on Insurance, Vol. 2 [5th Ed.] § 185, p. 658:

'An insurer clearly may be subrogated to its insured's claim against a third party who tortiously causes the loss, but no subrogation exists against the insured or co-insured whose negligence caused the loss. Generally, where an agent and his principal are both covered by...