Travelers Insurance v. Lee & Simmons, Inc.

241 A.D. 835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1934
• Status: Published

Opinion

Order denying defendant’s motion for judgment dismissing the complaint affirmed, with ten dollars costs and disbursements. The Federal statute, as construed in Ætna Life Ins. Co. v. Moses (287 U. S. 530), effects an assignment of the employee’s cause of action to his employer and a subrogation by the employer’s insurance carrier upon the payment of the employer’s obligations to the employee under the Longshoremen’s and Harbor Workers’ Compensation Act. The rights of an insurance carrier who has thus become subrogated to the rights of the employer, vesting in it by assignment, and who has thus become the real party in interest, are determined by the local law. (Ætna Life Ins. Co. v. Moses, supra.) The local law, at least where a wrongful death is not involved, permits the insurance carrier to enforce in its own name, in an appropriate action, such rights as vest in it by subrogation (Zurich G. A. & L. Ins. Co. v. Childs Co., 253 N. Y. 324; Ocean A. & G. Corp. v. Hooker Electrochem. Co., 240 id. 37; Dunlop v. James, 174 id. 411; St. Louis, etc., Railway v. Commercial Ins. Co., 139 U. S. 223, 235; Lord & Taylor v. Yale & Towne Mfg. Co., 230 N. Y. 132, 141; Travelers Ins. Co. v. Padula Co., 224 id. 397, 404; Streeter v. Graham & Norton Co., 263 id. 39, 43), subject to such duties and obligations as are placed thereon by the Federal statute, which is the source of its substantive rights. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.