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MATTER RAYMOND BRYCH v. FIREMAN'S FUND AMERICAN INSURANCE COMPANIES (10/23/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


October 23, 1969

IN THE MATTER OF RAYMOND BRYCH, RESPONDENT,
v.
FIREMAN'S FUND AMERICAN INSURANCE COMPANIES, APPELLANT, AND FRANK E. MARTIN ET AL., RESPONDENTS

Appeal from amended order of Onondaga Trial Term granting application for settlement of cause of action.

Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.

Memorandum: Appellant insurance carrier seeks reversal of Trial Term's order, made pursuant to subdivision 5 of section 29 of the Workmen's Compensation Law, approving the compromise and settlement of petitioner-respondent Brych's third-party cause of action on the ground that the amount of the settlement is "grossly inadequate". In support of its position the carrier urges that the accident resulted solely from the negligence of the third parties when the motor truck owned by one of them, and operated by the other, "jackknifed", crossed the center of the highway and struck Brych's vehicle while in its own proper lane. Brych sustained serious injuries and claimed total deafness in one ear, dizziness and "black-out" attacks, among other injuries, all of which, he asserted, resulted in total disability and permanence for which he demanded $75,000 in his complaint. Appellant further contends that at the time the action was reached for trial Brych had incurred approximately $1,500 medical expense and $19,000 loss of earnings, as well as the prospect of future medical expenses and loss of earnings. The order compromising and settling the action for $7,500 provided for payment of $4,268.22 to the carrier, to be applied toward its lien, and directed the balance to be paid to Brych's attorney for services and disbursements. The record convinces us that there is considerable merit to appellant's claim that the settlement amount is inadequate. Inasmuch as the carrier is the only party who can suffer if the trial of the action should result in less than the compromised amount, the order should be reversed and the matter disposed of by trial forthwith. (Cf. Workmen's Compensation Law, ยง 29, subd. 5, par. e.)

Disposition

 Order unanimously reversed, without costs, and case restored to the head of the Trial Day Calendar of Supreme Court, Oneida County.

19691023

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