Hartford Accident & Indemnity Co. v. Michigan Mutual Insurance

Silverman, J. (dissenting).

I would modify the order appealed from to the extent of granting the motion of defendant Michigan Mutual for summary judgment dismissing the complaint in toto as to that defendant.

An underlying action was brought by an injured person and his wife (the Gobins) arising out of an explosion on a construction site. In that action, the Gobins sued L.A.D. Associates, Inc. and DeFoe Corporation (the original defendants). Mr. Gobin was an employee of D.A.L. Construction Corporation (D.A.L.) whom he did not sue. The three corporations were closely related. All three were insured by Michigan Mutual as the primary insurer up to $1,000,000 and by defendant Hartford as excess carrier. The Gobin action was ultimately settled. Michigan Mutual, the primary insurer, paid the full amount of its policy, $1,000,000. Hartford, the excess carrier, paid the balance of the settlement, $400,000. Hartford now sues to recover this $400,000 from Michigan Mutual, D.A.L. and Montfort, Healy, McGuire and Salley, the attorneys (designated by Michigan Mutual) who represented the original defendants in the underlying action.

Although various legal theories are attempted to be set forth in the complaint, they all rest on these premises: (a) that D.A.L. as Mr. Gobin’s employer was liable to the original defendants for a Dole v Dow Chem. Co. (30 NY2d 143) contribution or indemnification; (b) that Michigan Mutual, or the attorneys, should have impleaded D.A.L. in the underlying action and asserted that claim to contribution, and that Hartford was wronged when Hartford’s request to cause D.A.L. to be impleaded was not complied with; and (c) Hartford, both in its individual capacity and *346as subrogee of the original defendants, was damaged by the failure to implead D.A.L.

It is true that if D.A.L. was negligent, then D.A.L. would be subject to a Dole v Dow Chem. Co. liability. But that does not help Hartford, the insurer.

Because of the insurance situation, neither Michigan Mutual nor Hartford had a right to assert or require the assertion of a claim for contribution or indemnification against D.A.L.; and Hartford was not injured by the failure to implead D.A.L.

D.A.L. and the two original defendants, three closely related corporations, were all three named as insureds both in Michigan Mutual’s policy and Hartford’s policy. Each insurer was under an obligation to protect all three of its insureds. As Hartford concedes in its brief, in general, “an insurer may not maintain a subrogation action against its own insured.” This court has recently so held: “the rule is firmly established that an insurance company may not be subrogated to the claim of one insured against another insured”. (Chrysler Leasing Corp. v Public Administrator, N. Y. County, 85 AD2d 410, 416; accord New York Bd. of Fire Underwriters v Trans Urban Constr. Co., 91 AD2d 115; Beck v Renahan, 46 Misc 2d 252, affd 26 AD2d 990; see, also, Gorham v Arons, 282 App Div 147, affd 306 NY 782; 6A Appleman, Insurance Law and Practice [1972 rev vol], § 4055: “Subrogation cannot be obtained against another insured under the same policy”.) The three affiliated companies, insureds under the same policy, had the right not to be subjected to a lawsuit instigated by their insurance company arising out of the very risk insured against.

Hartford suggests that this rule does not apply because the policy contained the usual “workmen’s” compensation exclusion. The latter consideration was determined to be immaterial in the Gorham case (supra). Further, the only copy of that clause in the record, the one in the Hartford policy, provides:

“This policy does not apply:

“(a) to any obligation for Which the insured or any carrier as his insurer may be held liable under any work*347men’s compensation, unemployment compensation or disability benefits law, or under any similar law”.

Any possible claim for contribution against D.A.L. would arise not under any workers’ compensation law but would exist by reason of D.A.L.’s negligence, if any, under the rule of Dole v Dow Chem. Co. (supra) and quite independently of any workers’ compensation laws. All that the Workers’ Compensation Law does in this case is to serve as a defense to any direct action by the injured party against his employer. It does not give rise, and is indeed irrelevant, to any obligation of the employer for contribution to other tort-feasors based on the employer’s own negligence.

Nor was Hartford injured by the failure to implead D.A.L. in the underlying action. If D.A.L. had a liability for contribution, that liability may be asserted even in a separate action after judgment in the underlying action. (CPLR 1401, 1403.) Indeed, Hartford is asserting precisely such a claim against D.A.L. in the first cause of action in its present complaint.

But as I have indicated, Hartford’s (and similarly Michigan Mutual’s) obligations as insurer of D.A.L. and its two affiliated corporations under the same policy preclude it from claiming contribution from one of the insureds under that policy; and by the same token, it was not wrongful for Michigan Mutual not to implead that insured.

In the view I take of this case, it becomes unnecessary to consider whether Hartford’s payment in settlement of the Gobins’ claims was a “voluntary payment”, for which indemnification or contribution may not be available. (Cf. Trojcak v Wrynn, 45 AD2d 770.)

Kupferman, J. P., Asch and Bloom, JJ., concur with Kassal, J.; Silverman, J., dissents in an opinion.

Order, Supreme Court, New York County, entered on August 16, 1982, modified, on the law, to the extent of denying the motion to dismiss and the cross motion for summary judgment, reinstating the complaint insofar as plaintiff asserts causes of action in its individual capacity against Michigan Mutual and Montfort, Healy, and otherwise affirmed. Plaintiff-appellant-respondent shall recover *348of Michigan Mutual Insurance Co. and Montfort, Healy, McGuire and Salley one bill of $75 costs and disbursements of this appeal.