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FRANK X. DUFFY v. LIBERTY MUTUAL INSURANCE COMPANY (12/31/68)

CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1968.NY.44115 <http://www.versuslaw.com>; 296 N.Y.S.2d 609; 58 Misc. 2d 855 December 31, 1968 FRANK X. DUFFY, PLAINTIFF,v.LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT Julius H. Sherman and Jacob Granat for plaintiff. Fogarty & Nielsen (Daniel M. Semel of counsel), for defendant. Edward J. Greenfield, J. Author: Greenfield


Edward J. Greenfield, J.

Author: Greenfield

 Plaintiff brought this action against the defendant, Liberty Mutual Insurance Company, which had issued a New Jersey family-automobile policy to him, for reimbursement of medical expenses incurred by him on behalf of his wife and infant son, who were seriously injured while passengers in the automobile being driven by plaintiff.

Plaintiff Frank X. Duffy, his wife Hanni, and his two-year-old son Thomas were residents of New Jersey. On March 10, 1960, Mr. Duffy was driving with his family in New York City when his car skidded and struck a light pole. They were all taken to Knickerbocker Hospital where plaintiff's wife Hanni was found to have a fractured jaw, fractured forearm, two broken legs and multiple facial injuries. Thomas, the infant son, sustained multiple fractures of the jaw, and had four upper teeth knocked out. They remained in the Knickerbocker Hospital until the following day, when they were removed by stretcher and ambulance to Riverdell Hospital in Oradell, New Jersey, which was closer to home and more accessible to their family physician.

Plaintiff's son remained in the hospital in New Jersey for treatment until March 24, 1960, a total of two weeks, but Mrs. Duffy was not discharged from the hospital until three and one-half months later.

Plaintiff filed proof of claim for medical payments for his wife and son in the sum of $7,320.75 for medical, surgical and hospital bills incurred by him. Defendant conceded a liability of $500 for each under Coverage C of the policy, and paid the plaintiff the sum of $1,000. This action is for the balance.

Mrs. Duffy had commenced a prior action in the Supreme Court, New York County, against her husband for general damages for her personal injuries. In New Jersey, a wife cannot sue her husband in tort as a matter of law (Koplik v. C. P. Trucking Corp., 27 N. J. 1; Kennedy v. Camp, 14 N. J. 390; Orr v. Orr, 36 N. J. 236) In New York, this common-law immunity has been abolished (General Obligations Law, ยง 3-313), but subdivision 3 of section 167 of the Insurance Law precludes insurance liability coverage for a spouse under policies issued in New York in the absence of an express provision to the contrary. However, Mrs. Duffy was suing under a New Jersey policy, so the New York Insurance Law did not apply, and she was suing in New York for a New York accident, so the applicability of the New Jersey inter-spousal immunity doctrine was open to question. (See Maryland Cas. Co. v. Jacek, 156 F. Supp. 43.) As a result, her claim was settled under Coverage A of her husband's policy (damages for liability) for $6,500.

In this action, it is the husband who seeks recovery from his insurer for the expenses incurred by him on behalf of his wife and son under the supplementary payments provisions of the policy. The defendant resists payment of any further sums on the grounds that such emergency medical payments by the insured are not reimbursable for members of the insured's household, nor with respect to expenses incurred for medical and surgical relief extending beyond the period immediately following the accident.

The family automobile policy has three basic types of coverage which must be differentiated in understanding the controversy in this case. They are:

Part I -- Liability

Part II -- Expenses for Medical Services

Part III -- Physical Damage

The liability coverage requires the insurance company "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

Coverage A -- Bodily Injury Liability. (Defendant paid $6,500 to Mrs. Duffy thereunder.)

Coverage B -- Property Damage Liability. (Defendant paid $265 to the City of New York thereunder for ...


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