Citation Numbers: 43 Misc. 2d 950
Judges: Baker
Filed Date: 8/14/1964
Status: Precedential
Modified Date: 2/5/2022
In this action by plaintiff wife to recover damages for personal injuries and by her husband to recover for loss of services and medical expenses, plaintiffs mové for an order granting leave to issue, file and serve a supplemental
It appears that under French law every motorist is required to be insured; and that in any suit arising out of a motor vehicle accident, brought against an insured tort-feasor or his agent, his insurance carrier must be named in the action as a codefendant. Under the law of France an action in tort may be brought either at the place where the tort occurred or at the legal domicile of the tort-feasor.
As plaintiffs contend, their right (indeed, their obligation) under the law of France to include as defendants in this action the owner’s liability insurance carriers is a substantive right, part of their cause of action, and not a mere matter of remedy. It has been held in this State that ££ As to substantive rights, the lex loci, not the law of the forum, controls and will be enforced in the courts of the forum in a transitory action * * * unless our public policy forbids ” (Coster v. Coster, 289 N. Y. 438, 442 and cases there cited).
Defendant, in opposition to the motion, contends that in this action, in which plaintiff seeks a trial by jury, the joinder as defendants of the insurance carriers would be prejudicial and violative of the public policy of the State of New York. In support of his position defendant points out that in France an action such as this would be tried by the court without a jury and no prejudice would result by reason of the joinder of the insurance carriers as defendants in the action.
The question then, here to be determined, is whether the public policy of New York forbids the enforcement here of plaintiffs’ right under French law to include as defendants in this action the two insurance carriers.
It has long been held in our State that £ £ Evidence that the defendant in an action for negligence was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and
Morton v. Maryland Cas. Co. (1 A D 2d 116) supports the defendant’s position. In that case plaintiff, a New York resident, commenced an action in Supreme Court, Kings County to recover damages for personal injuries sustained in an automobile accident which occurred in Louisiana. Maryland Casualty Company, the insurer of the vehicle in which plaintiff was a passenger was named as a defendant in the action. The law of Louisiana provided for the right of an injured party to bring a direct action against an insurance carrier for personal injuries sustained in that State. Maryland’s application for summary judgment was denied at Special Term. The Appellate Division reversed upon two grounds, 1) that the Louisiana statute under consideration limited the right of action it created to an action brought in the specified parishes in Louisiana and that the courts in that State have so held; and 2) that the enactment (permitting a direct right of action against the insurance carrier) is opposed to the public policy of this State, as expressed in our own statutes and judicial decisions, and as such is not enforcible in our courts.
The Court of Appeals (4 N Y 2d 488, 493) affirmed upon the first ground only “ since it without more [was] sufficient basis for dismissal.” However, recognition of the continuing validity of the rule stated in Simpson v. Foundation Co. appears to be implicit in the following excerpt from the court’s opinion (p. 493): “ The Appellate Division, dismissing the suit, assigned two reasons for nonenforcibility in New York: first, that under the statute’s language and its interpretation in Louisiana the venue restriction to certain parishes is an integral part and limitation of the right of action; and, second, that such a direct action against an insurance company is in opposition to New York’s public policy of eliminating from the jury’s consideration the fact of insurance (see Simpson v. Foundation Co., 201 N. Y. 479; Smith v. Majestic Iron Works, 2 N Y 2d 544).” (Emphasis supplied.)
In Kelly v. Yannotti (4 N Y 2d 603), the Court of Appeals reversed the Appellate Division, Second Department (4 A D 2d 767) which had refused to sever a cross claim against an insurance carrier which cross claim alleged “that the third-party defendant issued a policy of insurance under which it was obligated to indemnify the defendant-respondent if the latter
The holding in Kelly v. Yannotti has been followed in many cases in the courts of our State. It seems clear that the public policy of our State, as expressed in the decisions of our appellate courts forbids a direct right of action against an insurance carrier where the case is to be tried before the court and a jury such as the instant case.
The motion is denied, unless plaintiffs waive a jury and stipulate within 10 days after service of a copy of the order to be entered hereon, to proceed to trial before the court without a jury, in which event, the motion will be granted. Should a jury trial be waived, the declared public policy of this State will not be violated, and plaintiffs will be in the same position in which they would have been had the action been brought in France where the accident occurred.