Ross v. Pawtucket Mut. Ins. Co.
| Decision Date | 27 November 1963 |
| Citation | 195 N.E.2d 892,246 N.Y.S.2d 213,13 N.Y.2d 233 |
| Parties | , 195 N.E.2d 892 Nat ROSS, Plaintiff, v. PAWTUCKET MUTUAL INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant. Maurice MOSS et al., Third-Party Defendants-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Jacob Nagelberg and Max. J. Gwertzman, New York City, for appellant.
No appearance for respondents.
An automobile owned by Nat Ross was damaged in a collision with one owned by Tillie Moss and operated by her husband. The defendant insurance company had issued a policy insuring Ross' car against collision and, when Ross and the company were unable to agree as to the amount of damages, a suit was instituted by Ross upon the policy. After answering the complaint, the insurance company served a third-party complaint against Maurice and Tillie Moss, alleging that it was their negligence which caused the collision. Upon motion made pursuant to rule 106 of the former Rules of Civil Practice, the Special Term dismissed the third-party complaint, holding that the insurer had no right to prosecute the action in negligence before the payment of the insured's claim.
The Appellate Division, Second Department, affirmed that dismissal. We granted permission to appeal in view of an apparently conflicting conclusion reached by the Appellate Division, First Department (Madison Ave. Props. Corp. v. Royal Ins. Co., 281 App.Div. 641, 120 N.Y.S.2d 626).
The issue presented, therefore, is whether an insurer, upon being sued by its insured upon the policy, may implead in a negligence action the alleged tort-feasors. Its resolution rests upon the nature of the subrogation right and the terms of the policy itself.
Section 193-a of the former Civil Practice Act (see CPLR § 1007) permits a defendant to implead a person 'who is or may be liable to him for all or part of the plaintiff's claim against him'. The policy itself, however, provides that the insurer is to be subrogated to its insured's rights only 'in the event that any payment for any collision loss is made' to the insured. Appellant argues that, nothwithstanding the fact that no such payment has been made in this case, an insurer may, on the theory that it may later be required to pay upon its policy, claim as a potential subrogee and implead those allegedly responsible to its insured for the loss suffered.
We must disagree with this contention, for the rationale of our decisions in American Sur. Co. of New York v. Diamond, 1 N.Y.2d 594, 154 N.Y.S.2d 918, 136 N.E.2d 876 and Glens Falls Ins. Co. v. Wood, 8 N.Y.2d 409, 208 N.Y.S.2d 978, 171 N.E.2d 321 precludes such an interpretation. In both of the...
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...while not controlling, is helpful in guiding the Court in the exercise of its discretion. The defendants cite Ross v. Pawtucket Mutual Ins. Co., 13 N.Y.2d 233, 246 N. Y.S.2d 213, 195 N.E.2d 892 (1963), in support of their argument that, prior to payment, the insurer has no right to proceed ......
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