Dunbar v. Dunbar
| Decision Date | 10 January 1975 |
| Citation | 80 Misc.2d 744,364 N.Y.S.2d 699 |
| Parties | Anna B. DUNBAR, Plaintiff, v. Anna B. DUNBAR as executrix of the Estate of Robert J. Dunbar, Deceased, Defendant. |
| Court | New York Supreme Court |
This is a motion by Plaintiff seeking a determination declaring Section 167, subd. 3 of the Insurance Law of the State of New York unconstitutional.
The facts alleged by Plaintiff are as follows. On August 16, 1972 Plaintiff, Anna B. Dunbar, was the wife of Robert J. Dunbar, deceased, and was a passenger in a motor vehicle owned and operated by Robert J. Dunbar. On that date, the motor vehicle was involved in an accident, not involving any other vehicles, wherein while proceeding northbound on the New York State Thruway in Greene County, New York, the motor vehicle owned and operated by Robert J. Dunbar, in which Plaintiff was a passenger, left the highway and fell down an embankment in excess of 350 feet. As a result of the incident, Robert J. Dunbar was killed and Plaintiff, Anna B. Dunbar, sustained personal injuries.
Thereafter, on February 20, 1973, Plaintiff was duly appointed executrix of the estate of Robert J. Dunbar, deceased, and on July 3, 1974, the instant action for personal injuries was commenced by Anna B. Dunbar against the Estate of Robert J. Dunbar, deceased. By letter dated August 1, 1974, The Traveller's Insurance Company, which had issued a policy of liability insurance in the name of Robert J. Dunbar and covering the subject motor vehicle, returned the summons and complaint to Plaintiff's attorneys, and advised them that there was '. . . no coverage for inter-spousal suits under the insured's automobile policy . . .', relying upon Insurance Law, Section 167, subd. 3. Plaintiff does not contend that the policy contained any provision for spouse coverage.
Plaintiff has brought on the motion before the Court in the action for personal injury, rather than by way of a declaratory judgment action against The Traveller's Insurance Company. However, The Traveller's Insurance Company has submitted in opposition to the within motion, and all necessary parties are before the Court. The facts are not in dispute and the only issue before the Court is the constitutionality of Insurance Law, Section 167, subd. 3. Therefore, the Court will treat this motion as one for summary judgment for a declaratory judgment.
The common law did not recognize a cause of action by a wife against her husband for the wife's personal injuries. (Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597). In 1937, this disability was removed by the Legislature of the State of New York by the enactment of Section 57 of the Domestic Relations Law, now General Obligation Law, Section 3--313. At the same time, the Legislature enacted Section 109, subd. 3--a of the Insurance Law, now Section 167, subd. 3 of the Insurance Law, which provides that:
3. 'No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy.'
The Legislature, in enacting the foregoing provisions, clearly intended on the one hand to permit one spouse to be able to maintain an action for damages for personal injuries against the other spouse for the tortious conduct of the latter, and, on the other hand, to protect insurance carriers from the possibility of fraud and collusive actions by husband and wife. In Fuchs v. London and Lancashire Indemnity Co., 258 App.Div. 603, 605, 17 N.Y.S.2d 338, 340, the Appellate Division, Second Department, stated:
'These simultaneous enactments disclose a considered legislative intent to create a right of action theretofore denied, and at the same time to protect insurance carriers against loss through collusive actions between husband and wife.'
The Court of Appeals in New Amsterdam Cas. Co. v. Stecker, 3 N.Y.2d 1, at pages 5 and 6, 163 N.Y.S.2d 626, at page 629, 143 N.E.2d 357, at page 359, in construing the language of Insurance Law, Section 167, subd. 3, stated:
'The language employed by the Legislature is clear, succinct and unequivocal. (citation omitted). This court has declared on numerous occasions that where the language of a statute is without ambiguity, and the meaning unequivocal, there is no necessity for resort to rules of construction. (citation omitted). As was long ago stated in McCluskey v. Cromwell (11 N.Y. 593, 601): 'It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning.''
The Court, in determining the intent of the Legislature in the enactment of Insurance Law, Section 167, subd. 3, stated in New Amsterdam v. Stecker, supra, pp. 7 and 8, 163 N.Y.S.2d p. 631, 143 N.E.2d p. 360:
'The manifest purpose of subdivision 3 of Section 167 was to protect insurance carriers from collusive action between spouses arising out of automobile accidents . . . It is that possibility which the statute was intended to guard against, and the language of subdivision 3 of Section 167 if literally applied will accomplish that result.'
On December 20, 1974, the Court of Appeals made a further determination with respect to Insurance Law, Section 167, subd. 3, in State Farm Mutual Insurance Company v. Westlake, 35 N.Y.2d 587, 364 N.Y.S.2d 482, 324 N.E.2d 137, in which the Court held that even in an indirect lawsuit involving spouses in a situation of apportionment among joint or concurrent tortfeasors under Dole v. Dow...
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