Sharlow v. Nationwide Mutual Insurance

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.