Young v. Utica Mut. Ins. Co.
| Decision Date | 29 January 1982 |
| Citation | 448 N.Y.S.2d 83,86 A.D.2d 764 |
| Parties | Forrest YOUNG, Respondent, v. UTICA MUTUAL INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hornburg, Diggs & Marks, P.C. by Philip Marks, Olean, for appellant.
Dwyer & Dwyer, P.C. by Joseph Dwyer, Olean, for respondent.
Before SIMONS, J.P. and HANCOCK, DOERR, DENMAN, and SCHNEPP, JJ.
We agree that Trial Term properly determined, in this case of a disabled self-employed carpenter who owns and operates his own business, that the amount of lost "earnings" under Insurance Law ( § 671, subd. 1, par. ) may be measured by lost profits (see Spreen v. Erie R.R. Co., 219 N.Y. 533, 114 N.E. 1049; Kronold v. City of New York, 186 N.Y. 40, 78 N.E. 572; Galanis v. Simon, 222 App.Div. 330, 225 N.Y.S. 673, aff'd 250 N.Y. 524, 166 N.E. 310; 13 N.Y.Jur., Damages § 84; 45 A.L.R.3d 345). The record shows that both parties adopted this approach. The business was "an individual enterprise conducted chiefly by and his earnings were "chiefly personal, as is apparent from the fact that there ceased to be any net income from the business after his (Spreen v. Erie R.R. Co., supra, 219 N.Y. p. 536, 114 N.E. 1049). Further, we agree that the actual profits are not equivalent to and need not be limited to taxable net income.
The central issue here is whether the court's method in calculating the profits derived from this individual enterprise was correct. The court computed profits by attributing to plaintiff based on evidence of past performance the total receipts that he would have produced in his business during the period of his disability and deducting therefrom only such business expenses as would necessarily be related to the production of that income. In effect, the court adopted the general rule that lost profits mean "net profits" (see Martin Motor Sales v. Saab-Scania of America, 452 F.Supp. 1047; McRoberts Protective Agency v. Lansdell Protective Agency, 61 A.D.2d 652, 655, 403 N.Y.S.2d 511; Santa's Workshop v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839, aff'd 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529). We cannot say that Trial Term's award of $508 per month based on this computation is not supported by the evidence.
Turning to defendant's remaining contentions on appeal, we agree that the final award should be reduced by 20 percent (Insurance Law, § 671, subd. 2, par. ). Similarly, interest may not begin to run until May 24, 1978. Interest does not...
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