Stone v. Agricultural Ins. Co.

• Decision Date: 02 November 1973
• Citation: 351 N.Y.S.2d 496,76 Misc.2d 1021
• Parties: Donald STONE, Plaintiff, v. AGRICULTURAL INSURANCE CO., Defendant.
• Court: New York Supreme Court

Page 496

351 N.Y.S.2d 496

76 Misc.2d 1021

Donald STONE, Plaintiff, v. AGRICULTURAL INSURANCE CO., Defendant.

Supreme Court, Special Term, Albany County.

Nov. 2, 1973.

Brownstein & Garvey, Troy, for plaintiff (Jerome D. Brownstein, Troy, of counsel).

Carter, Conboy, Bardwell & Case, Albany, for defendant (Frank T. Mahady, Albany, of counsel).

JOHN L. LARKIN, Justice.

The defendant moves herein for an order pursuant to CPLR 3212 for summary judgment dismissing the complaint. The plaintiff moves, by cross motion, for an order granting summary judgment to the plaintiff and declaring that the defendant has a duty to defend the plaintiff and further determining that the plaintiff is covered under the terms of an insurance contract with the defendant.

On September 2, 1971, the plaintiff, Donald Stone, was operating his motor vehicle with his wife as a passenger when they were involved in a motor vehicle accident with a vehicle owned and operated by Susan Zilles. Donald Stone and his wife instituted a negligence action against Susan Zilles. The defendant Susan Zilles cross claimed against Donald Stone alleging that if she is responsible in damages in the action brought by Catherine Stone and Donald Stone, then Donald Stone, being also negligent, is responsible to her in whole or in part in proportion to his degree of fault and that may be determined by the jury (Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288).

From the moving papers it appears that as soon as Stone received the cross claim, he notified his insurance carrier. The Agricultural Insurance Co., the defendant in this action giving rise to the motion, advised Mr. Stone that there was no coverage under such situation. (§ 167(3), Insurance Law).

'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.' (§ 167(3), Insurance Law).

There is no allegation nor does this Court know of any policy in which there is an express provision relating explicitly to injury to one spouse caused by the other.

The position of the defendant-petitioner is simply and clearly stated. The claim of the plaintiff Donald Stone falls directly and completely within the statutory language of § 167(3) of the Insurance Law and, therefore, coverage is not and cannot be provided. A literal reading of the statute mandates the dismissal of the complaint for there is no question that the facts as alleged in the complaint come squarely within the language of § 167(3) of the Insurance Law.

Section 167(3) of the Insurance Law was enacted simultaneously with § 57 of the Domestic Relations Law which permitted actions between spouses involving torts (Fuchs v. London & Lancashire Indemnity Co., 258 App.Div. 603, 17 N.Y.S.2d 338). The simultaneous enactments (§ 167(3) Insurance Law; § 57 Domestic Relations Law), disclose a considered Legislative intent to create a right of action theretofore denied and at the same time to protect insurance carriers for loss through collusive actions between husband and wife. If the primary action had been brought against the husband by his wife, in this case, there would be no coverage. To require the insurance company to defend because the husband has been brought into the action as a third-party rather than as original defendant might well open the door to the evil contemplated by the prohibition of the statute (§ 167(3) Insurance Law; Feinman v. Bernard Rice Sons, Inc. 2 Misc.2d 86, 133 N.Y.S.2d 639, affd. 285 App.Div. 926, 139 N.Y.S.2d 884, motion for leave to appeal denied, 309 N.Y. 750, 128 N.E.2d 797). Leave to appeal was denied on the grounds that the order sought to be appealed from did not finally determine the action within the meaning of the Constitution.

In support of the position that the language of § 167(3) of the Insurance Law is clear and unambiguous and therefore not subject to any judicial construction, the Courts have held that a statute must be read and given effect as it is written by the Legislature, not as the Court might think it should or would like to have it written if the Legislature had envisioned all the problems and complications which might arise in the course of its administration (Lawrence Construction Corp. v. State of New York, 293 N.Y. 634, 59 N.E.2d 630). There is still a chance for collusion as in an instance when the defendant third-party plaintiff has a small policy, less than the special damages perhaps, and the third-party defendant husband has substantial insurance.

If § 167(3) of the Insurance Law is literally applied, a plaintiff-wife might well face the hardship of having to collect a substantial part of her judgment against an uninsured husband. On the other hand, if § 167(3) is not literally applied and the insurance company must defend, they may well face payment of claims not intended in the actuarial tables used to set the premiums.

Neither the moving nor responding papers cite any case other than Special Term, Supreme Court, in support of their respective positions. In Perno v. Exchange Mutual Insurance Co., 73 Misc.2d 346, 342 N.Y.S.2d 298 (1973), the Court held that in situations such as the instant one, § 167(3) of the Insurance Law is applicable and the defendant carrier is absolved from defending the action or indemnifying the...