Merchants Indem. Corp. of N.Y. v. Seward

• Citation: 12 Misc.2d 638,177 N.Y.S.2d 212
• Parties: MERCHANTS INDEMNITY CORPORATION OF NEW YORK, Plaintiff, v. Robert B. SEWARD & Lulu W. Seward, Defendants.
• Decision Date: 10 June 1958
• Court: New York Supreme Court

Page 212

177 N.Y.S.2d 212

12 Misc.2d 638

MERCHANTS INDEMNITY CORPORATION OF NEW YORK, Plaintiff, v. Robert B. SEWARD & Lulu W. Seward, Defendants.

Supreme Court, Special Term, New York County, Part XIII.

June 10, 1958.

Cusack, Shumate & Geoghan, New York City, for plaintiff.

Fritz J. Dietel, New York City, for defendants.

CHARLES A. LORETO, Justice.

In this declaratory judgment action the plaintiff insurer seeks a determination to the effect that the policy issued to the defendant insured does not obligate it to defend the said insured in an action instituted against him in Connecticut by his wife as a result of an automobile accident occurring in that state or to pay any judgment obtained by the insured's wife against him.

The facts are not in dispute. The plaintiff executed and delivered an automobile liability policy to the defendant insured in the City of New York. The policy states the address of the insured as '38 Livingston Street, Brooklyn', and further provides:

'The automobile will be principally garaged in the above town, city, county and state unless otherwise stated herein: six months Sachems Head, New Haven Co., Conn., balance of time New York.'

An accident occurred while the insured was driving his automobile in the State of Connecticut, and his wife, a passenger, received certain injuries. Shortly thereafter, she brought suit to recover damages therefor against him in the Superior Court of that state. That action is presently pending. At the time of the accident the policy of insurance was in effect.

Relying upon section 167, subdivision 3 of the New York Insurance Law, the insurer has declined to defend or assume liability of that action. The policy does not contain an express provision to the effect that injury to the spouse of the insured is covered, as is required by the statute.

The question therefore is whether under the facts in this case the New York statute is applicable, for if it is, the plaintiff is entitled to judgment.

The law of Connecticut does not relieve the insurer of liability to the insured for negligent injury to his spouse unless specifically excluded by the terms of the contract (Williamson v. Massachusetts Bonding & Insurance Co., 142 Conn. 573, 116 A.2d 169).

Citing and relying upon Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424; and Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99, 50 A.L.R.2d 246, which enunciate in the field of conflict of laws a theory of 'center of gravity,' i. e., that the laws of that jurisdiction should apply, which has the most significant contact with the matter in dispute and the most interest in the problem, the insured asserts that under the facts of this case the State of Connecticut represents the jurisdiction with such 'center of...