Smith v. Employer's Fire Ins. Co.

• Decision Date: 27 November 1972
• Citation: 72 Misc.2d 524,340 N.Y.S.2d 12
• Parties: Henry SMITH, Petitioner, v. The EMPLOYER'S FIRE INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court

Page 12

340 N.Y.S.2d 12

72 Misc.2d 524

Henry SMITH, Petitioner, v. The EMPLOYER'S FIRE INSURANCE COMPANY, Respondent.

Supreme Court, Special Term, Tompkins County.

Nov. 27, 1972.

Wiggins, Tsapis, Golder & Holmberg, Ithaca (Stanley Tsapis, Ithaca, of counsel), for petitioner.

Coulter, Fraser, Carr, Ames & Bolton, Syracuse (Bruce Bolton, Syracuse, of counsel), for respondent.

FREDERICK B. BRYANT, Justice.

The petitioner has commenced this action for a declaratory judgment defining the rights and obligations of petitioner and respondent under the policy of insurance described in the complaint. Specifically the action seeks to compel the respondent to defend and indemnify the petitioner in an action pending in Supreme Court, Tompkins County, in which certain defendants have interposed a cross-claim against the petitioner. While not specifically so designated, this motion is a motion by the petitioner for a summary judgment in the action.

Kathleen Smith, the wife of the petitioner, was injured in an accident while a passenger in a car owned and operated by her husband, the petitioner herein. She sued the driver of the other car involved in the accident to recover damages for her injuries. The defendant in that action has made a cross-claim against the petitioner herein, alleging that the petitioner is wholly or partly responsible for the accident and, pursuant to Dole v. Dow Chemical Company, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, is liable for a proportionate contribution to such defendant.

The petitioner is insured by the respondent against liability for damage arising from his negligence. He duly notified the respondent of the cross-claim and called on it to defend and indemnify him. The respondent has refused to do so, asserting that under section 167(3) of the Insurance Law it is not obligated to defend an action based on liability of its assured because of injury to his spouse.

Section 167(3) provides as follows:

'No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy.'

It is conceded that the policy issued by the respondent to the petitioner contained no 'express provision' 'specifically' providing that the petitioner be insured against liability for injuries to his spouse. Petitioner urges, however, that since this is not an action brought by the spouse but rather is an action by a third party for indemnity that section 167(3) does not apply.

The language of section 167(3) is clear and specific. It absolves an insurer from defending an action where the liability of its insured is incurred Because of death or injuries to the spouse. Such is clearly the situation here.

Those cases which have concerned themselves with section 167(3) have uniformly held that it applies to the type of situation with which we are here concerned. Feinman v. Rice Sons, 2 Misc.2d 86, 133 N.Y.S.2d 639, affd. 285 App.Div. 926, 139 N.Y.S.2d 884; Katz v. Wessel, 207 Misc. 456, 139 N.Y.S.2d 564; Peka, Inc. v. Kaye, 208 Misc 1003, 145 N.Y.S.2d 156; Reis v. Economy Hotels, 4 Misc.2d 146, 155 N.Y.S.2d 713; Barson v. General Accident Assurance Corporation, 41 Misc.2d 1033, 246 N.Y.S.2d 868. Involved in these cases were lawsuits by a wife against the employer of the husband where the husband had...