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TOLLEY v. AMERICAN TRANSIT INS. CO.

July 11, 1986

CAROLYN TOLLEY, Plaintiff,
v.
AMERICAN TRANSIT INSURANCE COMPANY, Defendant



The opinion of the court was delivered by: WARD

WARD, District Judge.

 In this diversity action, plaintiff seeks to recover damages under New York's no-fault law, as recodified, N.Y. Ins. Law § 5101 et seq., from the insurer of a company from whom plaintiff prevailed in a previous personal injury action. Plaintiff moves pursuant to Rule 56(a), Fed. R. Civ. P., for summary judgment in the amount of $ 47,906.39, based upon the jury verdict and final judgment entered in the previous action. Defendant cross-moves for partial summary judgment against plaintiff on the grounds that it should not be bound by the verdict entered in the earlier suit, and that plaintiff's recovery of medical expenses and lost earnings under the New York no-fault statute must be limited to expenses and/or losses she has in fact incurred. For the reasons that follow, the cross-motions are granted in part and denied in part.

 BACKGROUND

 The instant action, like the personal injury suit that preceded it, arises from a collision that occurred at an intersection in Queens on October 15, 1982 between a taxicab, in which plaintiff was a passenger, and another vehicle. In December 1982 plaintiff filed a diversity suit in this Court against Gas Transportation Corporation ("GTC"), the owner of the cab, Nathan Edwards, the driver of the cab at the time of the accident, and Leopoldo Ulloa and Israel Nieves, the operator and owner of the other vehicle involved in the collision. Tolley v. GTC, 82 Civ. 8486(RJW) (S.D.N.Y.) (" Tolley I "). Although not formally joined as a party in that action, American Transit Insurance Company ("ATI"), the defendant here, undertook the defense of GTC in that proceeding pursuant to the terms of an insurance contract then in effect between the two entities.

 The parties in Tolley I proceeded to a jury trial, at which the Court received testimony from plaintiff, defendants Edwards and Ulloa, the police officer who investigated the accident, an inspector from the Taxi and Limousine Commission who had inspected the taxicab approximately a month before the accident, and two dentists who examined plaintiff after the collision. On October 21, 1983, the jury entered a verdict in plaintiff's favor, apportioning fifty percent liability each to GTC/Edwards and Ulloa/Nieves. On the question of damages, the jury answered several special interrogatories as follows:

 
. . . .
 
6. What are the total damages sustained by the plaintiff for her pain and suffering?
 
$ 65,000.00
 
7. What loss of earnings, if any, do you find that the plaintiff sustained during the period October 15, 1982 through October 15, 1983 as a result of the happening of the accident?
 
$ 8,800.00
 
8. What loss of earnings, if any, do you find that the plaintiff will sustain during the period October 15, 1983 through October 15, 1985 as a result of the happening of this accident?
 
$ 10,000.00
 
9. What loss of earnings, if any, do you find the plaintiff will sustain after October 15, 1985 as a result of the happening of this accident, and for how many years will this loss of earnings continue?
 
$ 50,000.00
 
10 Years
 
10. What medical expenses, if any, do you find that the plaintiff will incur during the period October 15, 1983 through October 15, 1985 as a result of the happening of this accident?
 
$ 3,000.00
 
11. What medical expenses, if any, do you find that the plaintiff will incur after October 15, 1985 as a result of the happening of this accident, and for how many years will these medical expenses continue to be incurred?
 
$ 30,000.00
 
50 Years

 The Court entered judgment against the four defendants in Tolley I on November 14, 1983, in the amount of $ 121,000.00 plus interest and costs. This figure was arrived at by taking the jury's verdict of $ 166,800, adding $ 4,200, which the parties had stipulated were medical expenses plaintiff had already incurred, and then subtracting $ 50,000, the maximum amount plaintiff might recover under New York's no-fault statute, see N.Y. Ins. Law § 5102(a). On ...


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