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December 5, 1984

CBF TRADING CO. INC., Plaintiff, against THE HANOVER INSURANCE COMPANY, Defendant; THE HANOVER INSURANCE COMPANY, Defendant and Third-Party Plaintiff, against ELI A. COHEN, Third-Party Defendant.

The opinion of the court was delivered by: MOTLEY


Defendant Hanover Insurance Company ("Hanover") and third-party defendant Eli Cohen have each moved for summary judgment. Defendant Hanover asserts that summary judgment should be granted in its favor as to the second cause of action. Plaintiff's second cause of action is based upon an insurance contract issued to Eli A. Cohen, the third-party defendant. Hanover contends that the plaintiff does not have a direct cause of acction against it under this policy and, acccordingly, the second cause of action must be dismissed. If this motion for summary judgment is denied, defendant Hanover moves for separate trials of the two causes of action. The third-party defendant moves for summary judgment dismissing the third-party complaint on the grounds that an insurer has no right of subrogation against its own insured. For the following reasons, the motions are all denied.


 Plaintiff CBF Trading Co., Inc., has commenced this action against defendant Hanover seeking $146,719.64 in damages pursuant to two policies of jewelers block insurance issued by the defendant. The first policy, Jewelers Block Policy #IM 671297 was issued to plaintiff. The second policy is Jewelers Block Policy #IM 474656 and was issued to third-party defendant Cohen. The causes of action arose when Cohen, serving as bailee for plaintiff allegedly loss certain precious stones and jewels belonging to plaintiff. This property was covered by an All-Risk memorandum issued to plaintiff. Cohen was brought in as a third-party defendant by Hanover. Hanover seeks to exercise its equitable right of subrogation against the third-party defendant. Cohen also has commenced an action in the Eastern District of New York against Hanover, seeking to recover for the same loss.


 Third-party defendant argues that Hanover does not have a right of subrogation against him since no right of subrogation can arise in favor of an insurer against its own insured. Hanover, however, contends that the right of subrogation exists in this instance since the third-party defendant is not insured under the same policy as plaintiff. Furthermore, Hanover states that the insurance policy issued to Cohen was void at its inception and therefore no valid policy exists.

 Under the Federal Rules of Civil Procedure, Rule 56, the third-party defendant must demonstrate that there remains no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law before summary judgment can be granted. Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir. 1979). It is not necessary at this time, therefore, to consider whether the insurer may seek subrogation against a party which is insured under a different policy of the insurer.It is clear that a material issue of fact exists in this action, whether the policy issued to the third party defendant Cohen is valid. Accordingly, the third-party defendant's motion for summary judgment is denied.


 Defendant Hanover, in bringing its summary judgment motion, seeks to have the second cause of action dismissed, alleging that the plaintiff has no direct action against the insurance company in connection with the insurance policy issued to Cohen, the third-party defendant.Defendant asserts that only Cohen, the insured under the policy of insurance, may be sued by plaintiff. Hanover contends that the policy covers Cohen's legal liability to plaintiff and, accordingly, plaintiff has no direct cause of action against the insurer.

 Plaintiff, however, relies on the policy issued to Cohen. It asserts that paragraph 3 of the policy provides that the defendant insures:

 property . . . entrusted to the insured by others who are dealers in such property . . . only to the extent of the insured's own actual interest therein . . . or legal liability of or damage thereof.

 Plaintiff also relies on paragraph 10 of the policy which provides:

 In the event of loss or damage to property of others held by the insured by which claim is made upon the company, the right to adjust such loss or damage with the owner or owners of the property is reserved to the company and the receipt of such owner or owners in satisfaction thereof shall be in full ...

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