Exchange Mutual Indemnity Insurance v. Zurich General Accident, Fire & Life Insurance

Proskauer, J. Plaintiff issued its liability policy to the Tucker Electrical Construction Company “ to pay in the manner provided by the New York Workmen’s Compensation Law ” all sums which might become due from the employer because of any injury to employees “ and the obligation for compensation therefor imposed upon the employer by such law.” The defendant issued to the Tucker Company a policy identical in form, except that it related to the Connecticut Workmen’s Compensation Law. An employee of the Tucker Company was injured under circumstances which it is claimed gave him a right to seek compensation either under the New York or the Connecticut law. He has obtained compensation under the New York law and the plaintiff has been compelled to pay him under its policy.' It now seeks contribution from the defendant. It is doubtful if claimant could have succeeded in Connecticut. Hopkins v. Matchless Metal Polish Co., 121 Atl. Rep. 828. Even if he could have, however, to justify contribution the parties must be under a common burden or liability. 13 C. J. 822; Andrews v. Murray, 33 Barb. 354; Royster v. Roanoke N. & B. S. B. Co., 26 Fed. Rep. 492. While personal injury to an employee was one common element in fixing liability under the two policies, the differences in the statutes made the obligation of the two insurers essentially different and there can be no contribution. Nor can plaintiff recover on the theory of subrogation. No rights against the defendant under the Connecticut statute to which plaintiff could succeed have been fixed, nor can they be fixed in an action in the New York court. Judgment for defendant. Settle decision and judgment on notice. Judgment accordingly.