Kidney by Kidney v. Kolmar Laboratories, Inc., 1435
| Decision Date | 05 January 1987 |
| Docket Number | D,No. 1435,1435 |
| Citation | 808 F.2d 955 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | Medicare&Medicaid Gu 36,050 William F. KIDNEY, Jr., an infant by his Father and Natural Guardian William F. KIDNEY, and William F. Kidney, Individually, Plaintiffs-Appellees, v. KOLMAR LABORATORIES, INC., Defendant-Appellant, and Orange County Department of Social Services, Appellee, Orange and Rockland Utilities, Inc., Defendant. ocket 86-7194. |
Jeffrey J. Ellis, New York City (Quirk and Bakalor, New York City, on the brief), for defendant-appellant.
James G. Sweeney, Co. Atty., Goshen, N.Y., for plaintiffs-appellees.
Before NEWMAN, PIERCE, and MINER, Circuit Judges.
This appeal represents the inaugural use of a valuable device for cooperation among the federal and state courts within this Circuit--certification by this Court of a question of state law to the highest court of the relevant State. New York and Connecticut have recently adopted the certification procedure. See N.Y. Rules of Court Sec. 500.17 (N.Y.Ct.App.) (McKinney rev. ed. 1986); 1985 Conn. Acts III Sec. 1 et seq. (Reg.Sess.). On this appeal from a judgment of the District Court for the Southern District of New York (Lee P. Gagliardi, Judge), we concluded that the question of state law presented by the appeal should be certified to the New York Court of Appeals. 798 F.2d 467 (2nd Cir.1986). We have now received that Court's answer to the certified question, 68 N.Y.2d 243, 509 N.Y.S.2d 491, 502 N.E.2d 168. Since that authoritative answer is the same one given by Judge Gagliardi, we affirm the judgment of the District Court.
The pertinent facts and the relevant issue can be readily gleaned from the text of the Certificate we transmitted to the New York Court of Appeals. Both to enhance understanding of this appeal and to provide an illustration of a form of Certificate that evidently complies with the certification procedure of the New York Court of Appeals, we set forth the full text of our Certificate:
[case caption]
Certificate to The New York Court of Appeals (pursuant to
Sec. 500.17(b)--certification of
unsettled question of state law)
1. The case concerns the interpretation of section 104-b(2) of the New York Social Services Law. A liability insurance carrier paid $30,000 on behalf of its insured to the family of an infant injured in an accident for which the insured was later found partially responsible. The payment was to help pay for necessary medical treatment for the infant. At a subsequent trial in the United States District Court the insured was found liable to pay 60% of $637,000 awarded to the infant and of $37,500 awarded to the infant's father. Shortly after the jury verdict, the Orange County, New York, Department of Social Services filed and served a lien for $27,503.33, funds it had paid to the infant's family for the infant's medical expenses. The District Court ruled that the insured was obligated to pay a portion of the County's lien in the amount of $22,003.33. Then, in the portion of the ruling that gives rise to this Certificate, the District Court ruled that the $30,000 advanced by the insured's carrier to the infant's family was not "the payment of any monies" within the meaning of section 104-b. In the Court's view, "payment of any monies" means payment of money only pursuant to a settlement or a judgment. The Court therefore concluded that, since the lien was filed before payment pursuant to the judgment, though after the advance of the $30,000, the insured was obligated to pay its portion of the lien without regard to the $30,000 already paid.
2. The question presented is whether money advanced by an insurer on behalf of its insured to an injured party, prior to settlement or judgment of a tort action, is ...
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