Moore v. Leggette

• Decision Date: 16 March 1965
• Parties: Fronia MOORE v. Sadie B. LEGGETTE.
• Court: New York Supreme Court

Page 463

257 N.Y.S.2d 463

45 Misc.2d 603

Fronia MOORE v. Sadie B. LEGGETTE.

Supreme Court, Special Term, Suffolk County, Part I.

March 16, 1965.

John E. Gillies, Farmingdale, for plaintiff.

Henry Wolfman, New York City, for defendant.

JACK STANISLAW, Justice.

Passenger Fronia Moore brought a negligence action against the defendant Sadie B. Leggette, owner and operator of the car in which she was riding which collided with another allegedly injuring her. Included in Leggette's automobile liability insurance policy was an endorsement providing for payment of the medical expenses of persons injured while passengers in the car. Moore claimed such payment and, after releasing further claims under this endorsement, she was paid such expenses by the carrier. In this action an affirmative defense is set up by defendant Leggette offering the medical expense reimbursement to Moore as in mitigation of damages.

This motion by plaintiff asks that the affirmative defense be stricken as prejudicial, confusing and improper. In defense of the defense, the defendant relies primarily on the gratuitous nature of the coverage provided for her passenger's established benefit. Since plaintiff gave no consideration for the coverage Leggette justifies the pleading in mitigation of damages here as falling beyond the limits of that defined as a collateral source payment. Plaintiff has received compensation for medical expenses at no prior or concurrent expense to herself, and therefore defendant urges that she should be precluded from possibly obtaining a double recovery. Theoretically, the defendant has paid an extra insurance premium to avoid that circumstance. More precisely, it might be said that the insurer, having added coverage of this sort in all cases and regardless of the liability of their insured, now would use the satisfaction of that much of its obligation to mitigate its additional obligation in the event their insured is found liable to this plaintiff in this action.

Eighty-five years ago the Court of Appeals held that a plaintiff might only recover as compensatory damages that which he had actually paid or would have to pay (Drinkwater v. Dinsmore, 80 N.Y. 390). Recently, this rule has been the subject of further discussion by that court reflecting the intervening changes in the nature of our society. First, benefits received by a plaintiff as a result of his own past payment of a consideration were held inadmissible in mitigation where the indemnification was the direct and intended result of that prior payment (Healy v. Rennert, 9 N.Y.2d 202, 213 N.Y.S.2d 44, 173 N.E.2d 777). Then this holding was qualified somewhat by Coyne v. Campbell (11 N.Y.2d 372, 230 N.Y.S.2d 1, 183 N.E.2d 891), so that benefits received without evidence of tangible consideration given at any time were non-compensable. Healy was distinguished as involving a full recovery for benefits for which value was paid and received, whereas Coyne involved a valuation made of services rendered for which there was no monetary expectancy of payment by the persons whose services were nevertheless being evaluated. Finally, the Court of Appeals then held that certain pension monies received by a widow, the fund for which decedent had contributed to were not acceptable in mitigation of damages in a wrongful death action (Cady v. City of New York, 14 N.Y.2d 660, 249 N.Y.S.2d 868).

The entire problem of the nature of collateral source payments is of relatively recent vintage and therefore open. A complicating and apparently brand-new factor has been introduced by the Cady case. The latter action for wrongful death (Decedent Estate Law, § 130) obviously introduces a situation where the plaintiff, an estate, could not have contributed to the source of the payments made. We surely cannot say with certainty that the estate itself as such parted with consideration for the benefits received, and yet that which was received was not permitted in mitigation of damages. Decedent's contribution might be attribute to his estate on the basis of lesser take home pay and a resultant diminished household budget, but that reasoning seems strained and unrealistic at best. The point is, the principle of consideration paid by a party as thereby avoiding mitigation is stretched beyond recognition if stated that simply at this point.

If the Coyne case is reviewed as an avoidance of the idea of an evaluation of services rendered for no real expectancy of purely economic...