| Fasso v Doerr |
| 2007 NY Slip Op 10217 [46 AD3d 1358] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Paula Fasso et al., Respondents, and Independent HealthAssociation, Inc., Intervenor-Appellant, v Ralph J. Doerr, M.D.,Respondent. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiffs-respondents. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Joseph V. McCarthy of counsel), fordefendant-respondent. Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel of counsel), for the MedicalSociety of the State of New York, amicus curiae.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Rose H.Sconiers, J.), entered June 1, 2006 in a medical malpractice action. The order and judgment,among other things, denied the motion of plaintiff-intervenor for a mistrial and dismissed thecomplaint in intervention of plaintiff-intervenor.
It is hereby ordered that the order and judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Plaintiffs (hereafter, Fassos) commenced this medical malpractice actionseeking damages for injuries sustained by Paula Fasso (plaintiff). Supreme Court granted themotion of Independent Health Association, Inc. (IHA), plaintiff's health insurer, for an order,inter alia, permitting it to intervene in the action to assert a cause of action for equitablesubrogation and directing that the caption be amended to add it as "a party Plaintiff." On thesecond day of trial, the Fassos and defendant informed the court that they had reached asettlement agreement of $900,000, and defendant's attorney stated on the record that theagreement satisfied both the Fassos' medical malpractice action and IHA's cause of action forequitable subrogation. The court thereafter noted on the record that "it is abundantly clear that[plaintiff] is not made whole by this sum. As such, it does not give rise to any claim of equitablesubrogation on the part of [IHA]." The attorney for IHA stated on the record that it was objectingto the settlement of the cause of action for equitable subrogation because it had not been involvedin settlement negotiations, but that it was "not objecting to the settlement [between [*2]the Fassos and defendant]." Rather, IHA was "objecting to notbeing able to pursue [its] subrogation claims after the settlement," in view of the fact that thepolicy coverage of $1.1 million was not exhausted. IHA moved for a mistrial "with regard to[IHA's] claims that are pending in this matter because as far as [IHA was] concerned, they're notresolved by this settlement." In denying IHA's motion, the court stated that IHA had representedto the court that its role was subordinated to that of the Fassos and that, "[t]o permit [IHA] tothwart settlement would elevate [its] role from subordinate to controlling . . . ." Thecourt sua sponte dismissed IHA's "Complaint in Intervention."
We affirm. The rights of a health insurer in an equitable subrogation action are derived fromthe injured plaintiff (see Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372[1990]; Humbach v Goldstein, 229 AD2d 64, 67 [1997], lv dismissed 91 NY2d921 [1998]; see generally Blue Cross &Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206 [2004]), and ahealth insurer therefore has no right to control the settlement of the injured plaintiff's action.Here, the settlement agreement between the Fassos and defendant was expressly conditioned onthe satisfaction of both plaintiffs' medical malpractice action and IHA's equitable subrogationcause of action. The continuation of IHA's action against defendant would have nullified thatsettlement. We thus conclude that the court did not err in dismissing IHA's "Complaint inIntervention," albeit sua sponte. Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine,JJ.