Velazquez v. Water Taxi, Inc.

• Decision Date: 14 December 1978
• Citation: 411 N.Y.S.2d 261,66 A.D.2d 691
• Parties: Rosa VELAZQUEZ, Plaintiff-Respondent, v. WATER TAXI, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 261

411 N.Y.S.2d 261

66 A.D.2d 691

Rosa VELAZQUEZ, Plaintiff-Respondent, v. WATER TAXI, INC., et al., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 14, 1978.

D. C. Fotopoulos, New York City, for plaintiff-respondent.

W. Dinkes, New York City, for defendants-appellants.

Before MURPHY, P. J., and LUPIANO, MARKEWICH, SANDLER and SULLIVAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered November 10, 1977, denying defendants' motion for summary judgment to dismiss the complaint, reversed, on the law, without costs or disbursements, summary judgment granted to defendants, and the complaint dismissed.

Plaintiff was a passenger in a taxicab owned by one of the corporate defendants and operated by the defendant Campbell, an employee of the other corporate defendant. She sustained injuries when the taxi collided with a car operated by a hit-and-run driver. Plaintiff commenced arbitration proceedings under the uninsured motorist provision of defendants' insurance policy. She also commenced this action against defendants as tortfeasors. Both the notice to arbitrate and summons claimed $1,000,000 as the relief sought for the personal injuries sustained by plaintiff.

The arbitrator awarded $2,500 for non-economic loss, since "(n)o issue as to economic loss was submitted to this arbitration." Plaintiff moved to confirm the award which was eventually reduced to judgment. Defendants made payment and the judgment was satisfied. They subsequently moved in this action for summary judgment " . . . on the ground that the plaintiff has received a judgment for the injuries claimed and said judgment has been satisfied . . .." Special Term denied the motion, finding that plaintiff's submission of her uninsured motorist claim to arbitration " . . . is not an election of remedy barring her right to proceed at law on her other cause of action against the defendants." This appeal resulted.

Special Term misperceived the issue. What is involved is not an election of remedies but rather the application of Res judicata and the release effect on other tortfeasors in Pari delicto brought about by the satisfaction of a judgment against one of the tortfeasors. It is clear from the notice of intention to arbitrate that plaintiff sought $1,000,000, notwithstanding the fact that the limits of the uninsured motorist coverage were $10,000, without any reservation of rights or limitation of recovery requested based on an apportionment of the tortfeasors' liability. There was a general submission of the controversy, and any award made is thus conclusive and final on the issues submitted. (Ott v. Schroeppel, 5 N.Y. 482; New York Lbr. & Wood Working Co. v. Schneider, 119 N.Y. 475, 24 N.E. 4; Garnett v. Kassover, 8 A.D.2d 631, 185 N.Y.S.2d 435.)

We also find it significant that in awarding damages for plaintiff's injuries, the arbitrator obviously did not feel constrained by the $10,000 limit available under the uninsured motorist endorsement, since he awarded damages representing only 25% Of that amount. Plaintiff's position would be more tenable if the submission were limited to only those damages attributable to the hit-and-run tortfeasor, and the arbitrator had awarded $10,000. This award was subsequently judicially confirmed on plaintiff's application. Thus the arbitrator's determination was Res judicata as to the value of petitioner's injuries. (Parillo v. Nataro, 34 Misc.2d 800, 229 N.Y.S.2d 492.) Furthermore, once the award was reduced to judgment and satisfied, defendants, as joint tortfeasors, were released from liability. (Rossbach v. Rosenblum, 260 App.Div. 206, 20 N.Y.S.2d 725; Sarine v. American Lumbermen's Mutual Casualty Co., 258 App.Div. 653, 17 N.Y.S.2d 754.) In the face of a satisfied judgment, plaintiff could not proceed to obtain another judgment for the same injury arising out of the same tort. (See, Goines v. Pennsylvania Railroad Co., 6 A.D.2d 531, 179 N.Y.S.2d 960.) Nor can plaintiff avail herself of CPLR 3002(a), to proceed against other parties, since that section applies only where a judgment is not fully satisfied.

It should be noted that plaintiff commenced this action first and could have proceeded to judgment against these defendants while preserving her rights under the uninsured motorist provision. In fact, defendants did attempt to stay the arbitration on the ground of the pendency of this action. But she chose instead to submit the controversy to the arbitrator without reservation and to take that proceeding to a judgment which has been satisfied.

All concur except SANDLER, J., who dissents in a memorandum and LUPIANO, J., who concurs in the dissent in a separate memorandum as follows:

SANDLER, Justice (dissenting):

The opinion of the court fairly states the controlling facts. The issues presented are two.

The first is whether by proceeding to arbitration under the uninsured motorist's provision of the defendant's insurance policy, plaintiff somehow, without regard to the result of arbitration, lost the right to pursue her lawsuit against the defendant in court. As to that, the law is quite clearly established that she did not. See Brink v. Killeen, 48 A.D.2d 823, 368 N.Y.S.2d 547; Matter of O'Brien (Aetna Cas. & Sur. Co.), 33 A.D.2d 1085, 307 N.Y.S.2d 689; Matter of Alston (Amalgamated Mut. Co.), 53 Misc.2d 390, 278 N.Y.S.2d 906.

Matter of Alston, supra, involved a factual situation identical with that presented here. The sole distinction was that the insurance company there sought to stay the arbitration on the ground that it would require them to litigate in two separate forums. The court's analysis is very much to the point (at 395, 278 N.Y.S.2d at 912):

"There are two separate actions here, one involving the negligence of Alexandrea and the other the negligence of Joyner. If it is a burden on the petitioner to defend those two actions in two forums this is not the fault of the respondent. Rather it is caused by the insurance policy issued by the petitioner. The respondent must take the policy the way she finds it. She has no choice. There is no way in which she can arbitrate the question of Alexandrea's negligence, nor any way in which she can seek redress for Joyner's negligence against Amalgamated without proceeding in arbitration unless Amalgamated voluntarily waives its rights to insist on arbitration. This it has not done. . . . By requiring her to split her claims petitioner gets two chances to defeat her. It is possible that it will be able to convince the trier of the facts in the Civil Court action that Joyner was solely negligent and, on the other hand, convince the arbitrator that Alexandrea was solely negligent and thus escape liability altogether."

A similar conclusion was reached in Brink v. Killeen, supra, in which a plaintiff was awarded $10,000 in arbitration under an uninsured motorist's endorsement. The check she received in payment of the award, and which she and her counsel endorsed, contained a statement that the check was "for full and final settlement of any and all claims." Construing that language as not intended to constitute a release of plaintiff's claims against other tortfeasors, it was held that the payment of the award did not bar the lawsuit.

I do not understand the opinion of this court to depart from this body of authority. However, the suggestion that plaintiff should have sought to adjourn the arbitration until the completion of her lawsuit, however long that might be, implies an awkward and unwarranted restriction on the rights of those who suffer injuries under the circumstances present here. I am aware of nothing in the language of the statute that supports such a limitation.

The second question presented is whether the recovery by plaintiff of the sum awarded her by the arbitrator as non-economic loss invokes the principle of res judicata with regard to the court action. The court's conclusion rests upon a finding that the arbitrator had determined that the amount awarded represented the full amount of the non-economic damages plaintiff sustained. However, the arbitrator did not so state and nothing in the record permits us to so conclude as a matter of law.

The possibility simply cannot be excluded that the arbitrator awarded plaintiff only that part of the damages suffered that he attributed to the negligence of the uninsured motorist. If that were so, the effect of the court's decision will be to deny plaintiff the opportunity to receive full recovery for the injuries she sustained and to do so without a scintilla of support in Insurance Law, § 167 subd. 2-a or the purposes that section was intended to serve. Surely, the fairer and more sensible approach was that followed in Brink v. Killeen, supra, in which it was held that the amount recovered in arbitration did not preclude the lawsuit but would mitigate whatever damages were determined in the court action.

For the foregoing reasons, the order below, denying defendant's motion to dismiss...