Opinion
May 22, 1967
Appeal by defendant-appellant Burhans from an order and judgment of the Supreme Court, Tompkins County, entered January 16, 1967 directing and granting judgment for contribution in favor of the defendant-respondent Uhrovich. Plaintiff's intestate was killed as a result of a collision between a car in which she was a passenger, which was owned by her husband, Ronald Teeter, and operated by the defendant-respondent, Uhrovich, with a car owned and operated by the defendant-appellant Burhans. Judgment in favor of the plaintiff was entered in the sum of $20,523.86 which, with accrued interest to the date of satisfaction, amounted to $24,250.76. Both appellant and Teeter carried automobile liability insurance with policy limits of $10,000 and $20,000. In satisfying the judgment, the appellant's insurance carrier paid the sum of $10,094.95. Teeter's insurance carrier paid the sum of $10.094.95 since the defendant Uhrovich was an additional insured under its policy, and the defendant-respondent's insurance carrier paid the sum of $4,060.86. CPLR 1401 provides as follows: "Where a money judgment has been recovered jointly against defendants in an action for a personal injury or for property damage, each defendant who has paid more than his pro rata share shall be entitled to contribution from the other defendants with respect to the excess paid over and above his pro rata share; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his own pro rata share of the entire judgment." The appellant's contention is that since the respondent's insurance carrier paid only $4,060.86, and Teeter's insurance carrier paid $10,094.95; the respondent is not a defendant who has paid more than his pro rata share. This contention is based upon an assertion that the payment by Teeter's carrier was gratuitously made. The respondent was, in effect, a third-party beneficiary under the contract of insurance on the Teeter car. The payment by Teeter's carrier, having been made pursuant to a legal obligation, cannot be considered as having been gratuitously made. In the case of Wold v. Grozalsky ( 277 N.Y. 364), one defendant sought contribution from a codefendant of one half of a judgment paid in full by his insurance carrier and the court stated (p. 368) as follows: "It is argued that, since Grozalsky did not actually pay the judgment but it was paid on his behalf by an insurance company, he is not the real party in interest, and has no right to make this motion for contribution. As the judgment was paid on behalf of Grozalsky, he should have his right over against the other defendants. There can be no doubt that he would have such right if he had paid the money himself and in fact and effect this is what happened." The appellant further contends that, since the respondent did not pay the premium for the insurance on the Teeter car, the "collateral source doctrine" applies, and the respondent may not have contribution. Under this doctrine, a plaintiff may not recover damages in a negligence action for items of wages, medical expenses, and hospital bills which did not accrue to the injured person because of voluntary payment or donation by another, and for which payment he paid no consideration. ( Drinkwater v. Dinsmore, 80 N.Y. 390; Coyne v. Campbell, 11 N.Y.2d 372.) The facts in the instant case indicate that the payment by Teeter's insurance carrier was not voluntary and was not a donation of services, and the "collateral source doctrine" is, therefore, not applicable. There having been paid on behalf of the respondent $2,030.43 more than his pro rata share, he is entitled to contribution in that amount. ( Zeglen v. Minkiewicz, 12 N.Y.2d 497.) Order and judgment affirmed, with costs to respondent. Herlihy, J.P., Reynolds, Aulisi, and Staley, Jr., JJ., concur in a memorandum by Staley, Jr., J.