Bakker v. Aetna Life Ins. Co.

190 N.E. 327, 264 N.Y. 150, 1934 N.Y. LEXIS 1408

• Court: New York Court of Appeals
• Decided: April 17, 1934
• Status: Published

Opinions

Pound, Ch. J.

I agree with Judge O’Brien that owners of private motor vehicles are free to remain uninsured and that the contract of insurance may restrict its coverage as to time and place and use and as to injuries covered.

However, the owner did not go uninsured. A liability policy was issued and delivered, not limited as above indicated, but limited as to liability. Section 109 of the Insurance Law (Cons. Laws, ch. 28) provides: “ No such policy shall be issued or delivered in this state on or after July first, nineteen hundred and twenty-four, to the owner of a motor vehicle, by any corporation or other insurer authorized to do business in this state, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.

" A policy issued in violation of this section shall, nevertheless, be held valid but be deemed to include the provisions required by this section, and when any provision in such policy or rider is in conflict with the provisions required to be contained by this section, the rights, duties and obligations of the insurer; the policyholder and the injured person shall be governed by the provisions of this section.”

The car was driven at the time of the accident with the consent of the owner. “ The rights, duties and obligations of the insured, the policyholder and the injured person shall be governed by the provisions of this section.”

As we said in Brustein v. New Amsterdam Casualty Co. (255 N. Y. 137, 142): “ The third is an ' additional interest ’ clause aimed to protect the public against the operation of a car by others than the owner, provided they have the owner’s consent, express or implied. The primary purpose of this requirement is to meet the defense in an action on the policy that the owner was not at the time of the accident operating the car personally or by his agent, although it was being operated by a member of his family or another with his consent express or implied.”

The policy attempts to nullify the “ additional interest ” clause as above quoted. When the owner takes out a liability policy, no matter how limited as to coverage, the provisions of section 109 are a part of the contract.

The judgment should be affirmed, with costs.