(dissenting). I would have little difficulty accepting the majority view herein if it were possible to construe *322subdivision 3 of section 167 of the Insurance Law as requiring the insurer to provide the insured spouse with coverage and a defense in this situation. However, where, as here, the statutory language is broad and unambiguous and the legislative intent clear, we cannot change its import, in the guise of judicial interpretation, merely because the Court of Appeals has now adopted a doctrine of apportionment of responsibility among defendants. The language of that provision in the Insurance Law is crystal clear: “ No policy or contract shall be deemed to insure against any liability of an insured because of * * * injuries to his or her spouse ” (emphasis added). It is broad enough to encompass not only the insured’s direct liability to the spouse, but also any liability to another party seeking indemnity on account of injuries to the spouse. I agree that, in enacting this insurance exclusion, the Legislature could not possibly have foreseen the profound change in the law wrought by Dole v. Dow Ghem. Co. (30 N T 2d 143). But, by the same token, a re-examination of the legislative intent in light of Dole becomes a mere self-serving exercise.
The insurance exclusion was enacted into law in 1937 (as subdivision 3-a of section 109 of the former Insurance Law) simultaneous with the amendment of section 57 of the Domestic Relations Law (now General Obligations Law, § 3-313) (L. 1937, ch. 669, §§ 1, 2). terminating interspousal immunity. Its avowed purpose was to protect insurance carriers against loss through collusive actions between husband and wife (Fuchs v. London •& Lancashire Ind. Co. of Amer., 258 App. Div. 603, 605). The possibility of fraud and collusion is greatly diminished in a Dole situation, although there may still be occasions when the incentive for fraud is present, such as where the plaintiff spouse’s damages are far in excess of the other driver’s insurance coverage. But the protection afforded the insurance carrier is also, very simply, against any increase in liability without a commensurate increase in premium. Indeed, subdivision 3 of section 167 recognizes that the carrier and its insured may make express provision in the policy for insurance coverage in these situations; and this additional coverage would, no doubt, be dependent upon payment of an additional premium, assuming the carrier agrees to include it at all.
In reading subdivision 3 of section 167 to require coverage of the insured spouse where he or she is brought into, the litigation as a joint tort-feasor under Dole, the majority is, in my view, impermissibly extending the contract between the spouse and the carrier to require coverage in a situation not contemplated *323by either party when the agreement was executed (see Employers’ Liab. -Assur. Corp. v. Aresty, 11 A D 2d 331, 334-335, affd. 11 N Y 2d 696). The majority is rewriting the contract and depriving the carrier of the protection afforded it by the statute. Such a change in the statute, and it is basically the statute that is being dismembered, must be made by the Legislature, not the courts.
Dole, however, is a Judge-made rule and subject to continuing review and reinterpretation by the courts. (See, e.g., Codling v. Paglia, 32 N Y 2d 330, 344-345, where the Court of Appeals declined to judicially extend the doctrine of apportionment of responsibility into the area of plaintiffs’ negligence.) And it is Dole, rather than the statutory insurance exclusion, which, in my view, is being improperly applied in this factual situation. Dole was never intended to change the long-standing rule that a plaintiff is entitled to recover all of his or her damages from any one of the joint tort-feasors (Kelly v. Long Is. Light. Co., 31 N Y 2d 25, 30; Stein v. Whitehead, 40 A D 2d 89, 91). It was concerned solely with a more equitable apportionment of liability or damages as between joint tort-feasors. Nevertheless, when Dole is invoked so as to allow the driver-spouse to be brought into the litigation by the other driver, the result is that the innocent plaintiff spouse will almost certainly recover only partial damages. This is so because even though the other driver or, more properly, his insurer, may be required to satisfy the entire judgment, he will then enter a judgment against the uninsured driver-spouse for the latter’s judicially apportioned share of the damages. This second judgment will, as a practical matter, be satisfied either out of the family finances of the couple or by the injured plaintiff spouse’s simply returning a portion of her recovery to the other driver’s insurer. In addition, the family finances or the injured plaintiff’s actual recovery will be further effectively diminished by the cost of the driver-spouse’s defense. Since Dole was clearly never intended to prejudice the injured plaintiff vis-a-vis the defendants, it follows that the legally uninsurable driver-spouse should never have been brought into the litigation, as a defendant, by any other defendant, for to do so impermissibly impairs the injured plaintiff’s paramount right to recovery of full damages. Such an application of the Dole rule to these facts would be pragmatically unsound and realistically unfair (see Kelly v. Long Is. Light Co., 31 N Y 2d 25, 30, supra). To the extent that this view would contravene this court’s decision in Moreno v.. Galdorisi (39 A D 2d 450), I would overrule that decision.
*324In conclusion then, I would modify the judgment so as to provide not only that the plaintiff insurer is not obligated to defend or indemnify defendant Westlake but, further, that defendant Westlake was improperly joined as a third-party defendant in his wife’s action.* Anything less would deprive the wife of recovery of her full measure of damages and, even worse, would possibly result in catastrophic economic losses to her family, contrary to the express intent of Dole.
All parties in the main action were served and appeared in this declaratory judgment action.