22 A.D.2d 544 | N.Y. App. Div. | 1965
This is an appeal from an order and judgment of the Supreme Court, Clinton County, granting respondent’s motion for summary judgment.
On October 11, 1962 a car driven and owned by one Richard Ashline collided on Route 9 near Plattsburgh with a tractor-trailer driven by one William Clements and owned by Smith Transport U. S. Ltd. As a result of the accident, Clements was injured and Ashline and his two passengers, Rose Marie Duprey and Lester Ashline, were killed. Suits were thereafter initiated by Clements against Richard Ashline’s estate and by the estates of the two deceased passengers against Clements, Smith Transport and Richard Ashline’s estate. All three suits were eventually scheduled for trial at the April 1964 Term of Supreme Court, Clinton County. However, 11 days prior to trial the Security Mutual Casualty Company, Richard Ashline’s insurance company, settled with Clements for $9,000. The two remaining cases of the passengers were not settled and proceeded to trial at which a jury verdict was returned against Richard Ashline’s estate for $11,000 in favor of each passenger’s estate and of no cause of action with respect to the tractor-trailer operator and his employer. Since Richard Ashline had only a minimal $10,000/20,000 policy, Security Mutual, after reducing the $20,000 limit by the $9,000 settlement to Clements, paid $5,500 to each estate. The instant proceeding was then brought pursuant to section 167 of the Insurance Law by Miss Duprey’s administratrix to compel Security Mutual to pay an additional $4,500 toward her judgment.
The question presented is solely the effectiveness of Security Mutual’s settlement with Clements, albeit, in good faith, when it was aware that there were other claimants to the policy proceeds, that the total claims would probably exceed the policy limits and that there would probably be no source of recovery other than the policy. The court below has held the settlement to have had no effect on Security Mutual’s liability under the policy. After characterizing the settlement as a “voluntary
Since we find no triable issue of fact raised, respondent’s complaint not averring bad faith and her accompanying affidavit containing no “ evidentiary facts (as distinguished from mere conclusory allegations) ”, summary judgment must be granted for the appellant (Shapiro v. Health Ins. Plan, 7 N Y 2d 56, 64).
The oi 'der and judgment should be reversed, on the law and the facts; and defendant’s motion for summary judgment dismissing the complaint should be granted, without costs.
Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.
Order and judgment reversed, on the law and the facts; and defendant’s motion for summary judgment dismissing the complaint granted, without costs.