Opinion
November 10, 1994
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
The IAS Court correctly held that the insurer has a right of subrogation against the third-party tortfeasors for the payment the insurer made to the insureds for extended economic loss under a no-fault policy, since the release that the insureds gave in the underlying tort action was accepted by the third-party tortfeasors after the insurer had paid the insureds and indeed after the insurer had commenced this subrogation action (Aetna Cas. Sur. Co. v. Bekins Van Lines Co., 67 N.Y.2d 901, citing, inter alia, Ocean Acc. Guar. Corp. v. Hooker Electrochemical Co., 240 N.Y. 37, 47). Weinberg v. Transamerica Ins. Co. ( 62 N.Y.2d 379), which involved a release given by the insured before the insurer's subrogation rights arose, is not here applicable. The IAS Court correctly held that the third-party tortfeasors are entitled to reimbursement from the insureds to the extent that the settlement proceeds represented economic loss as opposed to pain and suffering (see, Aetna Cas. Sur. Co. v. Bekins Van Lines Co., supra, at 903). The insureds should not have to pay for their no-fault benefits out of their compensation for pain and suffering (Aetna Cas. Sur. Co. v Jackowe, 96 A.D.2d 37, 42), but neither should they be allowed to recover twice for economic loss by retaining the entire amount of the settlement proceeds (supra, at 44). That some portion of the settlement may have represented economic loss is evident from the insureds' pleadings in the underlying tort action, which included allegations of such losses, and an apportionment hearing was properly directed to ascertain such portion, if any.
We have considered the remaining arguments raised by the parties and find them to be without merit.
Concur — Ellerin, J.P., Asch, Rubin and Nardelli, JJ.