Moss v. Medical Liability Mut. Ins. Co.

• Decision Date: 05 January 1995
• Parties: Gerald MOSS, Appellant, v. MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 404

621 N.Y.S.2d 404

211 A.D.2d 854

Gerald MOSS, Appellant, v. MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, Respondent.

Supreme Court, Appellate Division,

Third Department.

Jan. 5, 1995.

Gleason, Dunn, Walsh & O'Shea (Thomas F. Gleason, of counsel), Albany, for appellant.

Le Boeuf, Lamb, Greene & MacRae (Robert J. Alessi, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, CASEY and YESAWICH, JJ.

YESAWICH, Justice.

Appeals (1) from an order of the Supreme Court (Spain, J.), entered January 19, 1994 in Rensselaer County, which, inter alia, granted defendant's cross motion for summary judgment and made a declaration in favor of defendant, and (2) from the judgment entered thereon.

Plaintiff, a physician formerly insured under a professional liability policy issued by defendant, seeks a declaration that certain language in the policy mandates that defendant refrain from making any payment to Robert Dunn and Carol Dunn, the prevailing parties in a medical malpractice action brought against plaintiff in 1985 (hereinafter the Dunn action), because he has not given his consent to do so. At the conclusion of the trial in the Dunn action, Supreme Court denied plaintiff's motion to set aside the jury's verdict and granted the Dunns' motion to increase the amount of damages awarded. An order was entered directing a new trial on the issue of damages unless plaintiff stipulated to an increased damage award. Believing that an appeal would not prove successful, defendant recommended settling the case, but plaintiff neither consented to a settlement nor accepted the additur, deciding instead to appeal Supreme Court's order and the underlying verdict.

While his appeal in the Dunn action was pending, plaintiff brought this action and simultaneously sought a preliminary injunction preventing defendant from paying the Dunns. Noting the possibility that the liability verdict might be overturned on appeal, Supreme Court granted the injunction on condition that plaintiff post an undertaking; because he did not do so, no injunction was issued. Supreme Court's decision in the underlying action was subsequently affirmed (see, Dunn v. Moss, 193 A.D.2d 983, 598 N.Y.S.2d 350). Thereafter, both parties to this action having moved for partial summary judgment, Supreme Court, construing the insurance policy in question, determined that it included an implied provision of reasonableness and that, in view of the fact that plaintiff had exhausted the appeal process with regard to the finding of liability, his consent to the payment had been unreasonably withheld. An order and judgment were entered declaring that defendant's only obligation with respect to the Dunn action was to pay "the amount finally determined by the verdict or thereafter determined by written agreement" between defendant and the Dunns. Plaintiff appeals.

This appeal is now moot for plaintiff took no action, pending appeal, to maintain the status quo (see, CPLR 5518, 5519), and defendant has, in the interim, tendered payment to the Dunns of the amount ordered by Supreme Court and received, in exchange, an...