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

• Citation: 57 Misc.2d 764,293 N.Y.S.2d 735
• Parties: UTICA MUTUAL INSURANCE COMPANY, Plaintiff, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN and Transamerica Insurance Company, Defendants.
• Decision Date: 07 August 1968
• Court: New York City Court

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.

[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.

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.

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 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 companies in this type of action are proper party defendants. (Jarka Corporation v. Firemen's Fund Indemnity Company, 286 App.Div. 148, 142 N.Y.S.2d 369, leave to appeal dism'd 309 N.Y. 1033, 130 N.E.2d 750; Commissioners of State Insurance Fund v. Allstate Insurance Company, supra.) It is true that the third party claimant would also be a proper party defendant, but he is not a necessary party defendant. (Commissioners of State Insurance Fund v. Schell et al., 23 A.D.2d 556, 256 N.Y.S.2d 638), in the same way that the attorney for the third party claimant is a proper, but not a necessary, party. (State Insurance Fund v. Parrilla, 31 Misc.2d 835, 225 N.Y.S.2d 236). Therefore, the present parties in this action could have joined the injured employee and his attorney as party defendants or could have cross-claimed against them. Since this was not done, only the plaintiff compensation carrier and the defendant liability insurance companies are involved in this action.

The defense of the Statute of Limitations, however, raises a serious bar to the plaintiff's cause of action. Section 214(2) CPLR, requires that an action be commenced within three years if it is one 'to recover upon a liability, penalty or forfeiture created or imposed by statute.' It has been held that the cause of action created by Section 29(5) of the Workmen's Compensation Law is an action to recover a penalty, and that, therefore, the three-year limitation applies. (Commissioners of State Insurance Fund v. Empire Trust Co., 184 Misc. 947, 55 N.Y.S.2d 631). Although this action, which was brought under Section 29(1) of the Workmen's Compensation Law, and is not one to recover a penalty, it is nevertheless an action to recover upon a liability created by statute and, therefore, the three-year limit applies to this action as well. (Employers' Liability Assurance Corp., Ltd. v. Shell Transportation Corp., 263 App.Div. 681, 34 N.Y.S.2d 339.)

The affidavits submitted in support of motions for summary judgment show that the third-party claim was settled No later than August 24, 1964. This we deduce from the fact that the letter which accompanied the check from defendant Employers Mutual Liability Insurance Company was dated August 24, 1964, and, of course, the settlement must have occurred either on that date or at some time prior thereto.

Section 29(1) of the Workmen's Compensation Law provides that the compensation carrier shall have a...