Meier v. Valley Forge Insurance

226 A.D.2d 687, 641 N.Y.S.2d 713, 1996 N.Y. App. Div. LEXIS 4606

Opinion

In an action to recover certain proceeds due under an insurance policy, the plaintiff appeals from an order of Supreme Court, Suffolk County (Doyle, J.), dated April 6, 1995, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is denied, and the complaint is reinstated.

On March 25, 1988, the plaintiff was involved in a motor vehicle accident while operating a vehicle insured by the defendant. Initially, the defendant paid the plaintiff lost wage benefits under the insurance policy, but the defendant denied further lost wage benefits on August 22, 1988. Subsequently, the plaintiff commenced an action against the responsible tortfeasor, and on September 10, 1991, the plaintiff unconditionally settled his action against the tortfeasor. In the present action, the plaintiff seeks to recover the further lost wage benefits denied by the defendant.

The plaintiff did not prejudice the subrogation rights of the defendant by unconditionally settling his action with the tortfeasor without the defendant’s consent. By repudiating liability for further lost wage benefits, the defendant released the plaintiff from any requirement in the policy that he obtain its consent before reaching settlement with the tortfeasor (see, Matter of Vanguard Ins. Co. [Polchlopek], 18 NY2d 376; Matter of Automobile Ins. Co. v Stillway, 165 AD2d 572). Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.