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MARVIN RUBIN v. EMPIRE MUTUAL INSURANCE COMPANY (04/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.41066 <http://www.versuslaw.com>; 299 N.Y.S.2d 1; 32 A.D.2d 1 April 10, 1969 MARVIN RUBIN, RESPONDENT,v.EMPIRE MUTUAL INSURANCE COMPANY, APPELLANT Rubin v. Empire Mut. Ins. Co., 57 Misc. 2d 106, reversed. Philip Hoffer of counsel (Rose L. Hoffer with him on the brief; Philip Hoffer, attorney), for appellant. Bernard H. Mazur of counsel (Mazur, Dontzin & Mazur, attorneys), for respondent. Steuer, J. Eager, J. P., and Markewich, J., concur with Steuer, J.; Nunez, J., dissents and votes to affirm in opinion, in which McGivern, J., concurs. Author: Steuer


Rubin v. Empire Mut. Ins. Co., 57 Misc. 2d 106, reversed.

Steuer, J. Eager, J. P., and Markewich, J., concur with Steuer, J.; Nunez, J., dissents and votes to affirm in opinion, in which McGivern, J., concurs.

Author: Steuer

 Plaintiff is the insured under a standard automobile policy issued by defendant. A part of the coverage provided is thus expressed in the policy:

"Coverage C -- Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:

"Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile."

Plaintiff was injured in an accident while riding in an automobile owned by his employer and in the course of his employment. The employer's compensation carrier paid all medical expenses resulting from the accident. No claim was ever asserted by anyone against plaintiff for these bills nor did he ever pay any part of them. Nor was he put to any other medical expense. Plaintiff nevertheless claims that he is entitled to be reimbursed for the amount already expended by the carrier.

While this is stated to be a case of first impression, every factor in it has already had judicial interpretation, in each instance adverse to plaintiff's contentions. Medical expenses are "incurred" when the patient is liable to pay for them (Shapira v. United Med. Serv., 15 N.Y.2d 200). And if, as here, the patient never did nor could become liable to the one supplying the services, no expenses are incurred. Plaintiff's contention that the policy is ambiguous because the phrase used was not "actually incurred" is too absurd to merit discussion.

Under the accepted canon of interpreting insurance policies, "the reasonable expectation and purpose" of the ordinary person taking out the insurance (Bird v. St. Paul Fire & Mar. Ins. Co., 224 N. Y. 47, 51), plaintiff has no claims. The object of insurance is to hold the insured harmless against the risks insured against. The policy must be construed with that in mind (1 Couch, Insurance [2d ed.], p. 782). So it has been held that under a policy providing for medical expenses recovery cannot be had when these expenses have already been paid by the tort-feasor's insurer (Wyman v. Allstate Ins. Co., 29 A.D.2d 319). Barring proof that it was the intention of the parties that the plaintiff was to receive a sum in excess of his medical expense, an interpretation that so allows attributes to the ordinary man an understanding so completely at variance with his purpose that it would not constitute compensation but unjust enrichment.

The judgment entered December 21, 1967, should be reversed, on the law, and the complaint dismissed, with costs to appellant in all courts.

Disposition

Determination entered on May 6, 1968, and the judgment of the Civil Court, New York County, are reversed, on the law, with $50 costs and disbursements to the appellant in this court, and with costs to defendant-appellant in the Civil Court and in the Appellate Term, the complaint dismissed, and the Clerk is directed to enter judgment in favor of the defendant-appellant dismissing the complaint, with costs.

Nunez, J. (dissenting).

Plaintiff recovered judgment in the Civil Court of the City of New York, County of New York for the sum of $2,433.50. The case was submitted to the court on an agreed statement of facts.

The question presented was: "Where the medical payments provision of the insurance policy provides that the insurer is 'to pay all reasonable expenses incurred within one year * * * to or for the named insured * * * is the insured precluded from recovering on the policy, absent an express exclusion by the fact that he is entitled to Workmen's Compensation and payments for Workmen's Compensation were made on his behalf'. " The Civil Court gave a negative answer to the question and concluded: "Since there was no express exclusion clause of Workmen's Compensation benefits in the policy, or other appropriate express language to the ...


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