Utica Mut. Ins. Co. v. Employers Mut. Liability Ins. Co. of Wis.

CourtNew York City Court
Writing for the CourtHAROLD H. HYMES
Citation57 Misc.2d 764,293 N.Y.S.2d 735
Decision Date07 August 1968
PartiesUTICA MUTUAL INSURANCE COMPANY, Plaintiff, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN and Transamerica Insurance Company, Defendants.

Page 735

293 N.Y.S.2d 735
57 Misc.2d 764
UTICA MUTUAL INSURANCE COMPANY, Plaintiff,
v.
EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN
and Transamerica Insurance Company, Defendants.
City Court of Utica, Oneida County.
Aug. 7, 1968.

Page 736

[57 Misc.2d 765] Gorman & Waszkiewicz, Utica (Robert Lutz, Utica, of counsel), for plaintiff.

O'Shea, Griffin, Jones & McLaughlin, Rome (David N. Hurd, Rome, of counsel), for defendant Employers Mut. Liability Ins. Co. of Wisconsin.

Kernan & Kernan, Utica (James W. Morgan, Utica, of counsel), for defendant Transamerica Ins. Co.

DECISION

HAROLD H. HYMES, Judge.

This is a motion for summary judgment brought by the defendants to dismiss the complaint and a cross-motion by the plaintiff for summary judgment in its favor.

Page 737

The plaintiff is the insurance carrier for an employer whose employee was injured on a construction job on November 11, 1955. Plaintiff paid medical expenses and compensation for the employee in the amount of $494.56. On November 7, 1958, the injured employee, with the consent of the plaintiff, commenced a third-party action against the contractor and subcontractor on the job where he was injured. The defendants are the insurance carriers for the said contractor and sub-contractor.

The plaintiff served notices of statutory lien under Section 29(1) of the Workmen's Compensation Law upon the defendant Employers Mutual Liability Insurance Company of Wisconsin and also upon the contractor, the sub-contractor and the attorney for the injured employee. No notice of statutory lien was served upon the defendant Transamerica Insurance Company, although there is no question that they knew of the plaintiff's claim and lien.

[57 Misc.2d 766] The third-party action against Employers Mutual's insured was settled November 1, 1962, and a settlement in the amount of $1,100.00 was mailed to the said attorney of the injured employee. On August 28, 1964, a settlement check in the same amount was mailed to the said attorney by defendant Transamerica Insurance Co. on August 24, 1964. The plaintiff agreed to this total settlement of $2,200.00.

It appears from correspondence of the plaintiff that the attorney for the employee had advised the plaintiff that its lien would be satisfied. The checks remained uncashed in the possession of his attorney until his death on March 8, 1966. Thereafter, in the Fall of 1966, two new checks in the amounts of $1,100.00 each were issued by the defendants, made payable to the injured employee, or to the employee and the estate of the said attorney. The employee cashed these checks and received the monies from them in the Fall of 1966. On August 24, 1966, the plaintiff wrote to the defendant Employers Mutual Liability Insurance Co. of Wisconsin, reminding them of their lien, but neither of the defendants have made any payment to the plaintiff on its lien. Action was commenced by the plaintiff against the defendant Employers Mutual Liability Insurance Co. by serving of a summons and complaint upon the Superintendent of Insurance on August 30, 1967, and against the defendant Transamerica Insurance Co. by the service of a summons and complaint upon the Superintendent of Insurance on October 10, 1967.

'Each of the defendants has set up affirmative defenses and has moved for a summary judgment dismissing the complaint. Defendant Transamerica denies liability because they received no written notice of the aforesaid statutory lien. Both defendants assert that the proper party defendant in this case is the injured employee. Both defendants

Page 738

also assert that the plaintiff is barred by the Statute of Limitations under Section 29(1) of the Workmen's Compensation Law.

A notice of lien need not be served in order to become effective. This is a statutory lien which attaches without the necessity of a notice. (Calhoun v. West End Brewing Company, 269 App.Div. 398, 56 N.Y.S.2d 105; Commissioners of State Insurance Fund v. Allstate Insurance Company, 41 Misc.2d 189, 245 N.Y.S.2d 575, aff'd 42 Misc.2d 141, 247 N.Y.S.2d 414; Commissioners of State Insurance Fund v. Sims, 187 Misc. 815, 67 N.Y.S.2d 665).

It is also established that liability insurance...

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7 practice notes
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...Corp. 47 Misc 2d 260, 262 N.Y.S.2d 652 [Sup. Ct. Queens Co. 1965]; Utica Mut. Ins. Co. v. Employers Mut. Liability Ins. Co. of Wis., 57 Misc 2d 764, 293 N.Y.S.2d 735 [NY City Ct.1968]; and Aiello v. Levine 44 Misc 2d 1067, 255 N.Y.S.2d 921 [Dist.Ct. Nassau Co.1965] are all applicable to the......
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...Corp. 47 Misc.2d 260, 262 N.Y.S.2d 652 [Sup.Ct., Queens Co.1965] ; Utica Mut. Ins. Co. v. Employers Mut. Liability Ins. Co. of Wis., 57 Misc.2d 764, 293 N.Y.S.2d 735 [N.Y.City Ct.1968] ; and Aiello v. Levine 44 Misc.2d 1067, 255 N.Y.S.2d 921 [Dist.Ct., Nassau Co.1965] are all applicable to ......
  • Aetna Life and Cas. Co. v. Nelson
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Junio 1985
    ...Compensation Law § 29[1]; Blankoff v. Vitucci, 68 A.D.2d 876, 414 N.Y.S.2d 42; Utica Mutual Ins. Co. v. Employers Mutual Liab. Ins. Co., 57 Misc.2d 764, 293 N.Y.S.2d Since the amounts of the judgments in the Court of Claims and the amounts paid by the plaintiff for which it seeks recoupment......
  • Cardillo v. Long Island College Hospital
    • United States
    • United States State Supreme Court (New York)
    • 13 Abril 1976
    ...and the compensation carrier to the extent imposed by statute (Utica Mutual Insurance Co. v. Employers Mutual Liability Insurance Co., 57 Misc.2d 764, 293 N.Y.S.2d An examination of the language of the amendment 'Should the employee * * * secure a recovery from such order, whether by judgme......
  • Request a trial to view additional results
7 cases
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...Corp. 47 Misc 2d 260, 262 N.Y.S.2d 652 [Sup. Ct. Queens Co. 1965]; Utica Mut. Ins. Co. v. Employers Mut. Liability Ins. Co. of Wis., 57 Misc 2d 764, 293 N.Y.S.2d 735 [NY City Ct.1968]; and Aiello v. Levine 44 Misc 2d 1067, 255 N.Y.S.2d 921 [Dist.Ct. Nassau Co.1965] are all applicable to the......
  • Comm'rs of the State Ins. Fund v. Augusto Garcia, Scalzi & Nofi PLLC, 003-MG
    • United States
    • United States State Supreme Court (New York)
    • 6 Agosto 2015
    ...Corp. 47 Misc.2d 260, 262 N.Y.S.2d 652 [Sup.Ct., Queens Co.1965] ; Utica Mut. Ins. Co. v. Employers Mut. Liability Ins. Co. of Wis., 57 Misc.2d 764, 293 N.Y.S.2d 735 [N.Y.City Ct.1968] ; and Aiello v. Levine 44 Misc.2d 1067, 255 N.Y.S.2d 921 [Dist.Ct., Nassau Co.1965] are all applicable to ......
  • Aetna Life and Cas. Co. v. Nelson
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Junio 1985
    ...Compensation Law § 29[1]; Blankoff v. Vitucci, 68 A.D.2d 876, 414 N.Y.S.2d 42; Utica Mutual Ins. Co. v. Employers Mutual Liab. Ins. Co., 57 Misc.2d 764, 293 N.Y.S.2d Since the amounts of the judgments in the Court of Claims and the amounts paid by the plaintiff for which it seeks recoupment......
  • Cardillo v. Long Island College Hospital
    • United States
    • United States State Supreme Court (New York)
    • 13 Abril 1976
    ...and the compensation carrier to the extent imposed by statute (Utica Mutual Insurance Co. v. Employers Mutual Liability Insurance Co., 57 Misc.2d 764, 293 N.Y.S.2d An examination of the language of the amendment 'Should the employee * * * secure a recovery from such order, whether by judgme......
  • Request a trial to view additional results

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