Teeter v. Burhans
| Decision Date | 22 May 1967 |
| Citation | 28 A.D.2d 615,280 N.Y.S.2d 28 |
| Parties | Leighton D. TEETER, as Administrator of the Estate of Mildred J. Teeter, Deceased, Plaintiff, v. Carl E. BURHANS, Appellant, and Stephen Uhrovich, Respondent. |
| Court | New York Supreme Court — Appellate Division |
William S. Elder Jr., Auburn, for appellant.
Thaler & Thaler, Manley H. Thaler, Ithaca, for respondent.
Before HERLIHY, J.P., and REYNOLDS, AULISI and STALEY, JJ.
Appeal by defendant-appellant Burhans from an order and judgment of the Supreme Court, Tompkins County, entered January 16, 1967 directing and granting judgment for contribution in favor of the defendant-respondent Uhrovich.
Plaintiff's intestate was killed as a result of a collision between a car in which she was a passenger, which was owned by her husband, Ronald Teeter, and operated by the defendant-respondent, Uhrovich, with a car owned and operated by the defendant-appellant Burhans. Judgment in favor of the plaintiff was entered in the sum of $20,523.86 which, with accrued interest to the date of satisfaction, amounted to $24,250.76.
Both appellant and Teeter carried automobile liability insurance with policy limits of $10,000 and $20,000. In satisfying the judgment, the appellant's insurance carrier paid the sum of $10,094.95. Teeter's insurance carrier paid the sum of $10,094.95 since the defendant Uhrovich was an additional insured under its policy, and the defendant-respondent's insurance carrier paid the sum of $4,060.86.
Section 1401 of the CPLR provides as follows:
'Where a money judgment has been recovered jointly against defendants in an action for a personal injury or for property damage, each defendant who has paid more than his pro rata share shall be entitled to contribution from the other defendants with respect to the excess paid over and above his pro rata share; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his own pro rata share of the entire judgment.'
The appellant's contention is that since the respondent's insurance carrier paid only $4,060.86, and Teeter's insurance carrier paid $10,094.95, the respondent is not a defendant who has paid more than his pro rata share. This contention is based upon an assertion that the payment by Teeter's carrier was gratuitously made.
The respondent was, in effect, a third-party beneficiary under the contract of insurance on the Teeter car. The payment by Teeter's carrier, having been made pursuant to a legal obligation, cannot be considered as having been gratuitously made.
In the case of Wold v. Grozalsky, 277 N.Y. 364, at p. 368, 14 N.E.2d 437, at p. 439, 122 A.L.R. 518, one defendant sought contribution from a co-defendant of one half of a judgment paid in full by his insurance carrier and the court...
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...230 N.Y.S.2d 1, 183 N.E.2d 891). To the contrary the dentists rendered bills for their services and were paid (see, Teeter v. Burhans, 28 A.D.2d 615, 280 N.Y.S.2d 28). A parent of an infant, unless reimbursed out of the infant's funds, may recover the amount the jury may fairly say from the......
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