Clarcq v. Chamberlain Mobile Home Transport, Inc.

• Decision Date: 03 June 1968
• Citation: 294 N.Y.S.2d 550,58 Misc.2d 227
• Court: New York Supreme Court
• Parties: Paul B. CLARCQ and Mary Clarcq, Plaintiffs, v. CHAMBERLAIN MOBILE HOME TRANSPORT, INC., and Maurice Blount, Defendants.

Page 550

294 N.Y.S.2d 550

58 Misc.2d 227

Paul B. CLARCQ and Mary Clarcq, Plaintiffs, v. CHAMBERLAIN MOBILE HOME TRANSPORT, INC., and Maurice Blount Defendants.

Supreme Court, Special Term, Monroe County.

June 3, 1968.

Zurett, Sullivan, Smith, Gough & Skipworth, Rochester, Samuel A. Halaby, Jr., Rochester, of counsel, for plaintiffs.

William A. Specht, for defendant, Chamberlain Mobile Home Transport, Inc.

William L. Clay, Rochester, Ivan V. Sturge, of counsel, for defendant, Maurice Blount.

MEMORANDUM DECISION.

CARROLLTON A. ROBERTS, Justice.

This is a motion for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. Briefly the facts may be summarized as follows: In March of 1963, defendants were served with a complaint which alleged that the defendant Chamberlain Mobile Home Transport Inc., had accepted and agreed to transport and deliver a certain 1961 Champion House Trailer containing certain articles of personal property belonging to plaintiffs from Groton, Connecticut, to Rochester, New York. Plaintiffs allegedly paid a valuable consideration for the services to be rendered by the defendant Chamberlain Mobile Home Transport Inc. Defendant Blount was the driver of the trailer. The agreement to transport and deliver entered into by and between plaintiffs and defendant Chamberlain was oral and it was alleged that no bill of lading was issued or signed by either of the parties. In the first cause of action, plaintiffs alleged that the property was not delivered at Rochester by defendant Chamberlain Mobile Home Transport Inc., and by reason of that fact defendant Chamberlain had breached the agreement entered into by and between the parties and therefore allegedly was liable to plaintiffs in damages. It should be noted that paragraph 'Seventh' of the complaint requested damages for the personal property transported within the trailer 'excluding the said 1961 Champion House Trailer'. A second cause of action prayed for damages on the allegation that the personal property of plaintiffs had been destroyed by reason of the negligence of defendants or their agents and employees. A single answer was submitted by an attorney on behalf of both defendants and in addition to admissions, and general and specific denials, alleged affirmatively that there was no contract or arrangement for the transportation of the personal property described in the complaint and further that plaintiffs were liable to defendant for certain storage charges. On September 28, 1964, the case came on for jury trial before the Honorable Daniel E. Macken. A verdict was entered in favor of plaintiffs and against defendant Chamberlain Mobile Home Transport Inc. in the amount of $1,400.00. By order dated November 19, 1964, and entered on November 24, 1964, defendants' motion for a directed verdict and for judgment notwithstanding the verdict was denied. Thereafter on the 27th day of November, 1964, a judgment was entered in favor of plaintiffs against defendant Chamberlain Mobile Home Transport, Inc., in the amount of $1,400.00 plus interest and costs.

In August of 1965, a second action was commenced by plaintiffs as nominal parties on behalf of their subrogated insurance carrier against defendants for damages in the amount of $4,000.00 alleged to have been suffered by plaintiffs by reason of the destruction of their mobile home. The theory of the second complaint was exactly the same as that in the first, i.e., the defendant Chamberlain Mobile Home Transport Inc., was charged with having accepted for transportation and delivery the mobile home with its contents belonging to plaintiffs and of having failed to deliver these goods as agreed. In addition, the complaint alleged that the failure to deliver the mobile home and its contents was solely by reason of the negligence of the defendants without any contributory negligence on the part of plaintiffs. Also the complaint alleged in paragraph 'Eleventh' 'that the same issues were decided by an action brought by Paul B. Clarcq and Mary Clarcq versus Chamberlain Mobile Home Transport Inc., and Maurice Blount. Attached hereto are copies of the Summons, Complaint, Answer and Judgment, which Judgment was entered in the Monroe County Clerk's Office on November 27, 1964. That this prior action is res judicata in regard to this present action now being brought.' Thereafter, issue was joined by an attorney on behalf of defendants by answer which, in addition to admissions and general and specific denials, alleged affirmatively that plaintiffs' complaint be dismissed on the ground that a single cause of action had been split insofar as the prior action involved property damage, allegedly part of a single cause of action, and the present action involved the remainder of the property damage allegedly arising from the same transaction and occurrence. Thereafter, plaintiffs moved for summary judgment on the ground that the issues raised by the second summons and complaint had been finally decided on the merits in the prior action.

Plaintiffs' moving affidavit made in their behalf by an attorney alleged that the American Fidelity Insurance Company of New York had insured the 1961 Champion trailer and upon the subject loss had paid plaintiffs $4,000.00. In consideration of this payment plaintiffs subrogated the American Fidelity Insurance Company to whatever cause of action they might have to recover for the damage to the trailer by a loan receipt executed on the 8th day of January, 1963. The moving affidavit continued to state that the second lawsuit was sued in the name of Mr. and Mrs. Clarcq as nominal plaintiffs only in behalf of the insurance company pursuant to the provisions of Civil Practice Law and Rules Section 1004.

Defendant Maurice Blount submitted an affidavit in opposition sworn to on the 3rd day of February, 1968, which stated that the prior judgment did not provide any affirmative relief in favor of plaintiffs and against defendant Blount and that therefore plaintiffs could not obtain such relief in the second action on the basis of any res judicata doctrine. A copy of the judgment was submitted to the Court on argument and upon examination it was determined that defendant Blount had not been included in the judgment and that the only relief granted in favor of plaintiffs had been against Chamberlain Mobile Home Transport Inc. Plaintiffs and defendant Chamberlain Mobile Home Transport Inc., contended on argument and in their papers that the judgment was intended and the verdict in fact did extend to defendant Blount; but insofar as the judgment itself is silent in this regard, and further fails to specify what relief, if any, was granted defendant Blount against plaintiffs by the verdict, the factual issue of the liability respectively of plaintiffs and defendant Blount remains unresolved and the motion as directed to defendant Blount must therefore be denied.

Defendant Chamberlain Mobile Home Transport Inc., opposed the motion by an affidavit submitted in its behalf by Attorney William A. Specht. That affidavit again stated defendants' theory that plaintiffs' second action on behalf of the subrogated insurance company was barred by the theory of splitting a cause of action.

Preliminarily, it should be noted that there no longer is any question as to the propriety of a subrogated insurance carrier suing out a claim in the name of its insured as nominal party plaintiffs. Skinner v. Klein, 24 A.D.2d 433, 260 N.Y.S.2d 799 (1st Dep't 1965); 3 Carmody Wait 2nd, Cyclopedia of New York Practice, section 19:29 at 229.

It is now settled that the doctrine of mutuality is not an indispensable prerequisite to invoking res judicata and further that res judicata can be used offensively. Moreover, the application of the doctrine of collateral estoppel and res judicata turns principally upon a determination that the issue determined on the merits in the first suit is the Same issue involved in the second suit. B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967), and United Mutual Fire Insurance Co. v. Saeli, 272 App.Div. 951, 71 N.Y.S.2d 696 (4th Dep't 1947), aff'd, 297 N.Y. 611, 75 N.E.2d 626 (1947). In addition to the determination whether justiciable issues of fact exist, the question of law for disposition on this motion is whether the failure of the subrogated insurance company to join in the first lawsuit so that the entire claim for property damage could be tried therein barred the later prosecution of a portion of the property damage claim on the ground that a single cause of action had been improperly split.

Where an insured commenced an action subsequent to receiving payment for a part of a loss from an insurance company and executing a loan receipt and subrogation agreement in consideration thereof to the company, a later suit by the insurance company for the amount so paid may be barred by the rule against splitting a cause of action. Pearl Assurance Co. v. Epstein, 295 N.Y....