Aetna Insurance Company v. Allstate Insurance Company

[33 A.D.2d 551 Page 551] An assessment is ordered to determine the amount of plaintiff's cost of settlement and defense. (See Federal Ins. Co. v.
Atlantic Nat. Ins. Co., 25 N.Y.2d 71.) The papers in opposition failed to raise a triable issue of fact. Plaintiff sues as
assignee and subrogee of one Benoit. Benoit is plaintiff's named insured under a liability policy which covered Benoit also
in the operation of a non-owned automobile. Defendant Allstate insured one McCarthy, whose automobile collided with a car
owned by one DiMarco. At the time, Benoit was operating McCarthy's car and McCarthy was a passenger. McCarthy sued Benoit
and the owner of the second car. A trial on the issue of liability resulted in a verdict in favor of McCarthy as plaintiff.