Sharlow v. Nationwide Mutual Insurance

47 A.D.2d 572, 362 N.Y.S.2d 618, 1975 N.Y. App. Div. LEXIS 8656

Opinion

Appeal from an order of the Supreme Court at Special Term, entered February 27, 1974 in St. Lawrence County, which granted a motion by plaintiff for summary judgment. The question presented for resolution on this appeal is whether, when a defendant seeks indemnification from a driver-spouse for injuries to a passenger-spouse upon the principles of Dole v. Dow Chem. Co. (30 N Y 2d 143), the exclusionary provision of subdivision 3 of section 167 of the Insurance Law applies so as to relieve the automobile insurance carrier of the driver-spouse from its responsibility to defend or pay such a claim. The Court of Appeals recently answered this question in the affirmative {State Farm Mut. Auto. Ins. Co. v. Westlake, 35 N Y 2d 587, revg. 43 A D 2d 314). Accordingly, the order appealed from must be reversed. Order reversed, on the law, without costs, and judgment directed to be entered declaring that, pursuant to subdivision 3 of section 163 of the Insurance Law, defendant’s disclaimer was proper. Herlihy, P. J., Sweeney, Kane, Main and Reynolds, JJ., concur.