Liberty Mutual Insurance v. Luna

The plaintiff alleges that on November 22, 1981, the defendant Rosalina Luna was operating a motor vehicle owned by the defendant Agency *90 Rent-A-Car and collided with a motor vehicle owned and operated by Lyle J. Smith. The plaintiff alleged that the Smith vehicle was damaged because of the negligence of the defendant Luna, that it insured the Smith vehicle, and that it has paid its insured and is subrogated to his rights.

The defendant Agency Rent-A-Car has counterclaimed against the plaintiff for damage caused to its vehicle in the collision. The plaintiff has moved to strike the counterclaim upon the ground that it fails to allege a recognizable cause of action against the plaintiff.

The counterclaim alleges that the negligence of the plaintiffs insured was the proximate cause of the collision. There is no allegation that the operator of the vehicle insured by the plaintiff was the agent of the plaintiff at the time of the collision. There is no allegation that the plaintiff had anything whatsoever to do with the operation of its insured’s vehicle or with the collision. While the negligence of Smith may constitute a defense to the plaintiff’s action, that is not to say that it provides the basis for an action against the plaintiff.

The motion to strike is granted.