
    [748 NE2d 1, 724 NYS2d 692]
    ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent, v Gladys Ward, Appellant. Tricia Ward, an Infant, by Her Mother and Natural Guardian, Persia Ward, Plaintiff, v ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Defendant and Third-Party Plaintiff-Respondent, et al., Defendant. Leslie Seaton, Third-Party Defendant-Appellant. American Home Assurance Company, Appellant, v ELRAC, Inc., Doing Business as Enterprise Rent A Car Company, Respondent, et al., Defendant. ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent, v American Home Assurance Company, Defendant, and Sergio Sabaris, Sued Herein as Sergio Gabaris, Appellant.
    Argued February 14, 2001;
    decided April 3, 2001
    
      POINTS OF COUNSEL
    
      Law Offices of Neil L. Kanzer, Garden City (Steven T. Farmer and Neil L. Kanzer of counsel), for appellant in the first above-entitled action.
    I. It is violative of the public policy of New York State to allow a rental car company to shift its minimum statutorily mandated financial responsibility requirements to a lessee of the vehicle. (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Morris v Snappy Car Rental, 84 NY2d 21; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Matter of New York City Tr. Auth. [Thom], 70 AD2d 158; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363.) II. Having represented to the Department of Motor Vehicles that its coverage was “primary,” Enterprise is precluded from arguing that its coverage is actually excess. III. The numerous decisions of the court below, which hold that ELRAC’s contractual indemnity provision is enforceable, fail to give due consideration to the legal issues at bar and are in direct conflict with other appellate authority. (ELRAC, Inc. v Rudel, 233 AD2d 417; ELRAC, Inc. v Beckford, 250 AD2d 725; Campbell v Bonne Annge, 260 AD2d 526, 93 NY2d 1040; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Gaudino v City of New York, 265 AD2d 298; Cuthbert v Pederson, 266 AD2d 255; Government Empls. Ins. Co. v Chrysler Ins. Co., 256 AD2d 1212; Snorac, Inc. v Skura, 273 AD2d 886; Worldwide Ins. Co. v U.S. Capital Ins. Co., 181 Misc 2d 480; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410.)
    
      Law Offices of Christopher A. Jeffreys, P. C., Melville (Christopher A. Jeffreys and Eric John Felsberg of counsel), for respondent in the first above-entitled action.
    I. ELRAC, Inc. has the right to common-law indemnity and contractual indemnity from defendant. (Rosano’s Farm Store v International Collection Serv., 115 AD2d 195; Kelly v Diesel Constr. Div. of Carl Morse, Inc., 35 NY2d 1; Parness v Halpern, 257 App Div 678; Naso v Lafata, 4 NY2d 585; Geller v Sherman, 48 Misc 2d 1049, 28 AD2d 959, 21 NY2d 976; Fedden v Brooklyn E. Dist. Term., 204 App Div 741; Good Health Dairy Prods. Corp. v Emery, 275 NY 14; Messersmith v American Fid. Co., 232 NY 161; Mills v Gabriel, 259 App Div 60, 284 NY 755; Aviv Knitwear Corp. v Greiner Maltz Co., 246 AD2d 565.) II. ELRAC’s application for its certificate of self-insurance does not create a defense and indemnity obligation. (Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Matter of Kleefeld, 55 NY2d 253; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Stratford School Dist. v Employers Reins. Corp., 162 F3d 718; Guercio v Hertz Corp., 40 NY2d 680; Gaudino v City of New York, 265 AD2d 298; American Ref-Fuel Co. v Resource Recycling, 248 AD2d 420.) III. ELRAC, Inc. has no obligation to defend and indemnify defendant based upon Vehicle and Traffic Law § 370. (Tulchinsky v Public Serv. Mut. Cas. Ins. Corp., 245 App Div 382; Long Is. Coach Co. v Hartford Acc. & Indem. Co., 223 App Div 331, 248 NY 629; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Radin v Avis Rent-A-Car Sys., 159 Misc 2d 370; Swee v Vals Trans, 225 AD2d 113; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Matter of Bliss v Bliss, 66 NY2d 382; Herzog v Stern, 264 NY 379; Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420.) IV. As a self-insured company, ELRAC, Inc. has no obligation to defend and indemnify defendant. (Levitt v Fireman’s Fund Ins. Cos., 54 AD2d 923; Nassau Ins. Co. v Guarascio, 82 AD2d 505; Guercio v Hertz Corp., 40 NY2d 680; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Location Auto Leasing Corp. v Lembo Corp., 62 Misc 2d 856; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 115 AD2d 243, 68 NY2d 465; Hertz Corp. v Dahill Moving & Star. Co., 79 AD2d 589, 54 NY2d 619; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Cuthbert v Pederson, 266 AD2d 255; People v Van Wie, 238 AD2d 876.) V. As a self-insurer, ELRAC, Inc. is not barred by the antisubrogation doctrine from seeking indemnity. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Dillion v Parade Mgt. Corp., 268 AD2d 554; Ozturk v Taskiran, 245 AD2d 355; Alinkofsky v Country-Wide Ins. Co., 257 AD2d 70.)
    
      Eliot Spitzer, Attorney General, New York City (Melvin L. Goldberg, Preeta D. Bansal, Daniel Smirlock, Thomas G. Conway, Dianne Dixon and Joy Feigenbaum of counsel), amicus curiae in the first above-entitled action.
    The court below legally erred by allowing Enterprise to obtain indemnification from its renter for its own statutory minimum liability coverage obligations. (Morris v Snappy Car Rental, 84 NY2d 21; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Government Empls. Ins. Co. v Chrysler Ins. Co., 256 AD2d 1212; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410; Worldwide Ins. Co. v U.S. Capital Ins. Co., 181 Misc 2d 480; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 190 AD2d 338, 83 NY2d 353.) ance Company, amicus curiae in the first above-entitled action. ELRAC must provide primary insurance coverage to defendant. (Morris v Snappy Car Rental, 189 AD2d 115, 84 NY2d 21; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410; ELRAC, Inc. v Rudel, 233 AD2d 417; Government Empls. Ins. Co. v Chrysler Ins. Co., 256 AD2d 1212; Snorac, Inc. v Skura, 273 AD2d 886; Worldwide Ins. Co. v U.S. Capital Ins. Co., 181 Misc 2d 480; ELRAC, Inc. v Beckford, 250 AD2d 725; Campbell v Bonne Annge, 260 AD2d 526; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Cuthbert v Pederson, 266 AD2d 255.)
    
      
      Rosenman & Colin, L. L. P., New York City (Philip A. Nemecek and Michael I. Verde of counsel), for Allstate Insur-
    
      
      Montfort, Healy, McGuire & Salley, Garden City (Donald S. Neumann, Jr., of counsel), for third-party defendant-appellant in the second above-entitled action.
    I. The indemnification clause contained in the ELRAC rental agreement violates the public policy of the State of New York and is unenforceable. (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Morris v Snappy Car Rental, 84 NY2d 21; Snorac, Inc. v Skura, 273 AD2d 886; Government Empls. Ins. Co. v Chrysler Ins. Co., 256 AD2d 1212; World Wide Ins. Co. v U.S. Capital Ins. Co., 181 Misc 2d 480; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410.) II. ELRAC may not subrogate against its own insured lessee. (Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 235 AD2d 523.) III. The ELRAC rental agreement is vague and any ambiguity must be construed in favor of its lessee. (Guercio v Hertz Corp., 40 NY2d 680.)
    
      Law Offices of Christopher A. Jeffreys, P. C., Melville (Christopher A. Jeffreys and Edward J. Savidge of counsel), for third-party plaintiff-respondent in the second above-entitled action.
    I. ELRAC has the right to complete indemnity from appellant. (Rosano’s Farm Store v International Collection Serv., 115 AD2d 195; Kelly v Diesel Constr. Div. of Carl Morse, Inc., 35 NY2d 1; Super Glue Corp. v Avis Rent A Car Sys., 159 AD2d 68; Bean v Ford, 65 Misc 481; Naso v Lafata, 4 NY2d 585; Geller v Sherman, 48 Misc 2d 1049, 28 AD2d 959, 21 NY2d 976; Fedden v Brooklyn E. Dist. Term., 204 App Div 741; Good Health Dairy Prods. Corp. v Emery, 275 NY 14; Messersmith v American Fid. Co., 232 NY 161; Hertz Corp. v Government Empls. Ins. Co., 250 AD2d 181.) II. ELRAC, Inc. has no obligation to defend and indemnify appellant based upon Vehicle and Traffic Law § 370. (Tulchinsky v Public Serv. Mut. Cas. Ins. Corp., 245 App Div 382; Long Is. Coach Co. v Hartford Acc. & Indem. Co., 223 App Div 331, 248 NY 629; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Darrohn v Rus
      
      sell, 154 Misc 753; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Matter of Bliss v Bliss, 66 NY2d 382; Radin v Avis Rent-A-Car Sys., 159 Misc 2d 370; Swee v Vals Trans, 225 AD2d 113; Herzog v Stern, 264 NY 379; Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420.) III. As a self-insured company, ELRAC, Inc. has no obligation to defend and indemnify appellant. (Levitt v Fireman’s Fund Ins. Cos., 54 AD2d 923; Nassau Ins. Co. v Guarascio, 82 AD2d 505; Guercio v Hertz Corp., 40 NY2d 680; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Location Auto Leasing Corp. v Lembo Corp., 62 Misc 2d 856; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 115 AD2d 243, 68 NY2d 465; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589, 54 NY2d 619; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Cuthbert v Pederson, 266 AD2d 255; People v Van Wie, 238 AD2d 876.) IV. As a self-insurer, ELRAC, Inc. is not barred by the antisubrogation doctrine from seeking indemnity from appellant. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Dillion v Parade Mgt. Corp., 268 AD2d 554; Snorac, Inc. v Skura, 273 AD2d 886; Ozturk v Taskiran, 245 AD2d 355; Alinkofsky v Country-Wide Ins. Co., 257 AD2d 70.)
    
      Stuart M. Herz, Garden City, for appellant in the third above-entitled action.
    I. The indemnification provision in Enterprise’s form contract is void as against New York public policy to the extent that it does not provide minimum liability insurance protection as required by New York law. (Morris v Snappy Car Rental, 189 AD2d 115,. 84 NY2d 21; Motor Vehicle Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410; Guercio v Hertz Corp., 40 NY2d 680; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Matter of Midwest Mut. Ins. Co. v Pisani, 250 AD2d 512.) II. The court below incorrectly failed to find that New York’s antisubrogation rule bars ELRAC from recovery. (Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Federal Ins. Co. v Ryder Truck Rental, 82 NY2d 909; Prince v City of New York, 189 AD2d 33; Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 235 AD2d 523, 89 NY2d 817.) III. The ELRAC indemnification is invalid under CPLR 4544. (Morris v Snappy Car Rental, 84 NY2d 21; General Elec. Capital Auto Lease v 
      
      D’Agnese, 239 AD2d 462; Worldwide Ins. Co. v U.S. Capital Ins. Co., 181 Misc 2d 480.) IV. Even if defendant is required to defend and indemnify ELRAC, American Home is not obligated to defend and indemnify defendant under the American Home policy.
    
      Law Offices of Christopher A. Jeffreys, P. C., Melville (Christopher A. Jeffreys and Glenn H. Egor of counsel), for respondent in the third above-entitled action.
    I. This Court has previously determined that a self-insurer has no obligation to defend and indemnify vehicle renters and operators. (Levitt v Fireman’s Fund Ins. Cos., 54 AD2d 923; Nassau Ins. Co. v Guarascio, 82 AD2d 505; Guercio v Hertz Corp., 40 NY2d 680; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Location Auto Leasing Corp. v Lembo Corp., 62 Misc 2d 856; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 115 AD2d 243, 68 NY2d 465; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589, 54 NY2d 619; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Cuthbert v Pederson, 266 AD2d 255; People v Van Wie, 238 AD2d 876.) II. ELRAC’s application for its certificate of self-insurance does not create a defense and indemnity obligation. (Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Matter of Kleefeld, 55 NY2d 253; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Stratford School Dist. v Employers Reins. Corp., 162 F3d 718; Guercio v Hertz Corp., 40 NY2d 680; Gaudino v City of New York, 265 AD2d 298; American Ref-Fuel Co. v Resource Recycling, 248 AD2d 420.) III. ELRAC, Inc. has no obligation to defend and indemnify defendant based upon Vehicle and Traffic Law § 370. (Tulchinsky v Public Serv. Mut. Cas. Ins. Corp., 245 App Div 382; Long Is. Coach Co. v Hartford Acc. & Indem. Co., 223 App Div 331, 248 NY 629; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Darrohn v Russell, 154 Misc 753; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Matter of Bliss v Bliss, 66 NY2d 382; Herzog v Stern, 264 NY 379; Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420; Radin v Avis Rent-A-Car Sys., 159 Misc 2d 370; Swee v Vals Trans, 225 AD2d 113.) IV. As a self-insurer, ELRAC, Inc. is not barred by the antisubrogation doctrine from seeking indemnity. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Dillion v Parade Mgt. Corp., 268 AD2d 554; Ozturk v Taskiran, 245 AD2d 355; Alinkofsky v Country-Wide Ins. Co., 257 AD2d 70; Snorac, Inc. v Skura, 273 AD2d 886.) V. ELRAC, Inc. has a right to common-law indemnity and contractual indemnity from defendant. (Rosano’s Farm Store v International Collection Serv., 115 AD2d 195; Kelly v Diesel Constr. Div. of Carl Morse, Inc., 35 NY2d 1; Parness v Halpern, 257 App Div 678; Naso v Lafata, 4 NY2d 585; Geller v Sherman, 48 Misc 2d 1049, 28 AD2d 959, 21 NY2d 976; Cuthbert v Pederson, 266 AD2d 255; ELRAC, Inc. v Beckford, 250 AD2d 725; General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659; Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 168 AD2d 121; Messersmith v American Fid. Co., 232 NY 161.) VI. Plaintiff failed to present any proof concerning the application of CPLR 4544 to the case at bar. (Monarch Prop. Assocs. v Benjamin, 108 Misc 2d 251, 114 Misc 2d 502; Cuthbert v Pederson, 266 AD2d 255; Drelich v Kenlyn Homes, 86 AD2d 648; Ayala v Jamaica Sav. Bank, 121 Misc 2d 564, 109 AD2d 723; Lerner v Karageorgis Lines, 66 NY2d 479; Naso v Lafata, 4 NY2d 585; Super Glue Corp. v Avis Rent-A-Car Sys., 159 AD2d 68; Rosen v Village Chevrolet, 63 Misc 2d 174; Murray Oil Prods, v Royal Exch. Assur. Co., 21 NY2d 440; Hacker v Smith Barney, Harris Upham & Co., 131 Misc 2d 757,136 Misc 2d 169.) VIL Personal accident insurance does not provide third-party protection. VIII. American Home’s reliance upon a disclaimer letter issued nearly two years after the date of the accident is untimely as a matter of law. (Foremost Ins. Co. v Rios, 85 AD2d 677, 55 NY2d 607; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028; Allstate Ins. Co. v Moon, 89 AD2d 804; General Acc. Ins. Group v Cirucci, 46 NY2d 862; Fabian v Motor Vehicle Acc. Indem. Corp., 111 AD2d 366; Naso v Lafata, 4 NY2d 585; Geller v Sherman, 48 Misc 2d 1049, 28 AD2d 959, 21 NY2d 976.)
    
      Isserlis & Sullivan, East Norwich (Bertram Herman of counsel), for appellant in the fourth above-entitled action.
    I. ELRAC, as a self-insurer, possesses no greater rights than does an owner of a motor vehicle registered in New York State who buys a policy of commercial motor vehicle liability insurance. (Guercio v Hertz Corp., 40 NY2d 680; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Motor Vehicle Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260; Morris v Snappy Car Rental, 84 NY2d 21; Allstate Ins. Co. v Snappy Car Rental, 16 F Supp 2d 410; Gaudino v City of New York, 265 AD2d 298; North Star Reins. Co. v Continental Ins. Co., 82 NY2d 281; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Royal Indem. Co. v Providence Washington Ins. Co., 92 NY2d 653.) II. ELRAC, as a motor vehicle financial security self-insurer, is an insurer based upon the very definition of the term. (Country-Wide Ins. Co. v Rodriguez, 55 NY2d 162; Matter of American Tr. Ins. Co. v Abdelghany, 80 NY2d 162; Allstate Ins. Co. v Aetna Cas. & Sur. Co., 191 AD2d 665; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Royal Indem. Co. v Providence Washington Ins. Co., 92 NY2d 653; Kenyon v Newton, 144 AD2d 901; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363.) III. The term “self-insured retention” is an insurance obligation. (Tokio Mar. & Fire Ins. Co. v Insurance Co., 262 AD2d 103; Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651; Matter of Storar, 52 NY2d 363.)
    
      Law Offices of Christopher A. Jeffreys, P. C., Melville (Christopher A. Jeffreys and Christopher J. Barletta of counsel), for respondent in the fourth above-entitled action.
    I. ELRAC, Inc. has a right to common-law indemnity and contractual indemnity from defendant. (Rosano’s Farm Store v International Collection Serv., 115 AD2d 195; Kelly v Diesel Constr. Div. of Carl Morse, Inc., 35 NY2d 1; Parness v Halpern, 257 App Div 678; Naso v Lafata, 4 NY2d 585; Geller v Sherman, 48 Misc 2d 1049, 28 AD2d 959, 21 NY2d 976; Fedden v Brooklyn E. Dist. Term., 204 App Div 741; Good Health Dairy Prods. Corp. v Emery, 275 NY 14; Messersmith v American Fid. Co., 232 NY 161; Aviv Knitwear Corp. v Greiner Maltz Co., 246 AD2d 565; EL-RAC, Inc. v Rudel, 233 AD2d 417.) II. As a self-insured company, ELRAC, Inc. has no obligation to defend and indemnify defendant. (Levitt v Fireman’s Fund Ins. Cos., 54 AD2d 923; Nassau Ins. Co. v Guarascio, 82 AD2d 505; Guercio v Hertz Corp., 40 NY2d 680; Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Location Auto Leasing Corp. v Lembo Corp., 62 Misc 2d 856; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 115 AD2d 243, 68 NY2d 465; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589, 54 NY2d 619; Federal Ins. Co. v ELRAC, Inc., 262 AD2d 276; Cuthbert v Pederson, 266 AD2d 255; People v Van Wie, 238 AD2d 876.) III. ELRAC’s application for its certificate of self-insurance does not create a defense and indemnity obligation. (Aetna Cas. & Sur. Co. v World Wide Rent-A-Car, 28 AD2d 286; Matter of Kleefeld, 55 NY2d 253; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Stratford School Dist. v Employers Reins. Corp., 162 F3d 718; Matter of Midland Ins. Co., 269 AD2d 50; Gaudino v City of New York, 265 AD2d 298; American Ref-Fuel Co. v Resource Recycling, 248 AD2d 420.) IV. ELRAC, Inc. has no obligation to defend and indemnify defendant based upon Vehicle and Traffic Law § 370. (Tulchinsky v Public Serv. Mut. 
      
      Cas. Ins. Corp., 245 App Div 382; Long Is. Coach Co. v Hartford Acc. & Indent. Co., 223 App Div 331, 248 NY 629; Sandolovich v United States Fid. & Guar. Co., 142 Misc 463; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Matter of Bliss v Bliss, 66 NY2d 382; Herzog v Stern, 264 NY 379; Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420; Radin v Avis Rent-A-Car Sys., 159 Misc 2d 370; Swee v Vals Trans, 225 AD2d 113.) V. As a self-insurer, ELRAC, Inc. is not barred by the antisubrogation doctrine from seeking indemnity. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363; Dillion v Parade Mgt. Corp., 268 AD2d 554; Ozturk v Taskiran,, 245 AD2d 355; Alinkofsky v Country-Wide Ins. Co., 257 AD2d 70.)
   OPINION OF THE COURT

Chief Judge Kaye.

Can ELRAC, a rental car company, enforce a standard clause in its rental agreements requiring the renter to indemnify it for any injuries caused to third parties by use of the rental car? We hold that ELRAC may not seek indemnification where the damage falls below the minimum insurance that the rental company is required to provide under section 370 (1) of the Vehicle and Traffic Law.

ELRAC, doing business as Enterprise Rent-A-Car, is a self-insured company, having obtained a certificate of self-insurance pursuant to Vehicle and Traffic Law § 370 (3). In its application for the certificate of self-insurance, ELRAC averred, among other things, that its “self-insurance program will provide primary coverage at all times,” and that it “has, and will continue to have, the financial ability to respond to all payments of automobile claims and/or judgments arising out of ownership, maintenance, use or operation of [its] motor vehicles.” ELRAC’s rental agreements contain an indemnification clause, which requires the renter to “defend, indemnify and hold [the company] harmless from any claims, liabilities, costs and expenses arising from the renter’s use, operation or possession of the rented vehicle.” The agreements also state that ELRAC provides no bodily injury or property damage liability insurance, and that the renter’s own insurance applies instead.

Each of the four cases before us involves a similar fact pattern. A person driving a car rented from ELRAC was involved in an accident, causing injury to a third party. The injured party sought damages from ELRAC — the owner of the car— pursuant to Vehicle and Traffic Law § 388, and ELRAC sought indemnification from the renter pursuant to the rental agreement. The particular facts of each case follow.

ELRAC v Ward

Defendant Gladys Ward rented a car from ELRAC and signed the standard indemnification clause. While driving the rental car, Ward collided with a vehicle owned by Gus Lerner. Lerner sought damages as a result of the accident, and ELRAC settled Lerner’s claim for $2,073.99. ELRAC then brought the present action seeking to collect the settlement amount from Ward under the indemnification clause. Supreme Court granted ELRAC’s motion for summary judgment, holding that it was entitled to indemnification under the rental agreement. The Appellate Division affirmed, stating that because ELRAC “seeks indemnification for sums it has actually paid to the third party, the policy underlying Vehicle and Traffic Law § 388 is not undercut by enforcement of the indemnification clause” (266 AD2d 500, 501).

Ward v ELRAC

Third-party defendant Leslie Seaton rented a car from ELRAC and signed the standard indemnification clause. While driven by Seaton’s son, Douglas Seaton, the car was involved in an accident, injuring plaintiff Tricia Ward. Ward brought suit against ELRAC and Douglas Seaton, and ELRAC brought a third-party action against Leslie Seaton, seeking indemnification. Supreme Court granted conditional summary judgment to ELRAC, concluding that Leslie Seaton was required under the rental agreement to indemnify ELRAC for the amount of any judgment and expenses incurred in defending the action. The Appellate Division affirmed, holding that ELRAC was entitled to contractual indemnification.

American Home Assurance Co. v ELRAC

Carlos Medina, who was insured by plaintiff American Home Assurance Company, rented a car from ELRAC and signed the standard indemnification agreement. While driving the rental car, Medina was involved in an accident with a New York City fire truck. A passenger in the car, Nelson Gonzalez, commenced an action against ELRAC, Medina and the owner of the fire truck. American Home Assurance then brought the instant action seeking a declaratory judgment that it had no liability for the accident and that ELRAC had a duty to defend and indemnify Medina. ELRAC responded that it owed no such duty and that, under the indemnification clause, Medina had an obligation to indemnify ELRAC. Supreme Court granted ELRAC’s motion to dismiss American Home Assurance’s complaint, holding that Medina was contractually obligated to defend and indemnify ELRAC. The Appellate Division affirmed, stating that the indemnification clause was “valid and enforceable,” and that ELRAC had “no obligation to defend or provide primary insurance for the lessee of one of its vehicles” (273 AD2d 330, 330-331).

ELRAC v American Home Assurance Co.

Sergio Sabaris, who was insured by defendant American Home Assurance Company, rented a car from ELRAC and signed the standard indemnification clause. While driving the rental car, Sabaris was involved in an accident. The occupants of the other vehicle were Peter, Etheline and Sharon Warner. The Warners brought personal injury and property damage claims, which ELRAC settled for a total of $22,700 ($6,000 each for injuries to Etheline and Sharon; $8,000 for injuries to Peter; and $2,700 for property damage). ELRAC then brought the present action seeking indemnification from Sabaris under the rental agreement. ELRAC also sought a declaration that American Home Assurance was obligated to defend and indemnify Sabaris.

Supreme Court held that the indemnification clause was unenforceable, stating that the rental company was required by law to provide primary insurance to the renter, and that “any attempt by the lessor to assert its right to contractual indemnification from the lessee after payment to a third party is an attempt to transfer the loss to its own insured and is barred by the antisubrogation rule.” The Appellate Division modified the judgment and held that Sabaris was required to indemnify ELRAC under the rental agreement. The Appellate Division stated that the indemnification clause was “valid and enforceable,” and that ELRAC “is not the primary insurer of the renter of its vehicle * * * and therefore, the antisubrogation rule does not apply” (273 AD2d 344, 345).

We granted leave, and now reverse the Appellate Division orders in all four cases and remit to Supreme Court for application of the proper legal standard to the particular facts of each case.

Analysis

The issue in these cases arises from the interplay of Vehicle and Traffic Law §§ 370 and 388 with the law of indemnification. Section 370 of the Vehicle and Traffic Law requires common carriers, including rental car companies, to obtain insurance or file a surety bond for their vehicles. Specifically, section 370 (1) requires every “person, firm, association or corporation engaged in the business of carrying or transporting passengers for hire” to file with the Commissioner of Motor Vehicles “a corporate surety bond or a policy of insurance * * * conditioned for payment of a minimum sum * * * on a judgment or judgments for damages.” This requirement applies to, among others, any “person, firm, association or corporation engaged in the business of renting or leasing rental vehicles” (Vehicle and Traffic Law § 370 [3]). For passenger cars seating not more than seven people, the minimum liability insurance mandated by the statute is $25,000 for bodily injury and $50,000 for death (Vehicle and Traffic Law § 370 [1] [a]); the statute specifies no minimum insurance requirement for property damage. The bond or policy of insurance “shall inure to the benefit of any person legally operating the motor vehicle * * * in the business of the owner and with his permission, in the same manner and under the same conditions and to the same extent as to the owner” (Vehicle and Traffic Law § 370 [1] [b]).

In lieu of filing a surety bond or insurance policy, rental car companies with 25 or more registered vehicles may seek permission from the Commissioner of Motor Vehicles to self-insure. To do so, the rental agency must satisfy the Commissioner that it “is possessed and will continue to be possessed of financial ability to respond to judgments obtained against such person, arising out of the ownership, maintenance, use or operation of any such person’s motor vehicle” (Vehicle and Traffic Law § 370 [3]).

Section 388 of the Vehicle and Traffic Law states that the owner of a motor vehicle may be held civilly liable for any damage caused by the owner or any permissive user of the vehicle. Section 388 (1) states, “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.” This provision, derived from section 59 of the Vehicle and Traffic Law of 1929 (as amended in 1934), altered the common-law rule that an owner of a vehicle was liable for injuries caused by its operation only if it was driven personally by the owner or his agent (see, Hertz Letter, Bill Jacket, L 1934, ch 491; see also, Potts v Pardee, 220 NY 431, 434-435 [expressing common-law rule]). The purpose of section 388 is to “ensure access by injured persons to ‘a financially responsible insured person against whom to recover for injuries’ ” (Morris v Snappy Car Rental, 84 NY2d 21, 27 [quoting Plath v Justus, 28 NY2d 16, 20]).

In the present cases, ELRAC, the owner of the automobiles, was liable to the injured third parties under section 388 (1). Answering the specific question before us, we hold that section 370, which requires rental agencies to obtain a minimum amount of insurance for its vehicles, prohibits ELRAC from seeking indemnification from its renters for amounts up to the minimum liability requirements.

The language of section 370 is plain and precise. Common carriers, including rental car companies, are required to obtain insurance for their vehicles. For passenger cars, such as the ones rented here, the insurance must provide minimum liability coverage of $25,000 for bodily injury and $50,000 for death. Furthermore, the policy must “inure to the benefit” of any permissive user of the vehicle (Vehicle and Traffic Law § 370 [1] [b] [emphasis added]). A renter is, of course, a permissive user. Thus, section 370 clearly requires the rental company to provide the renter with this minimum level of coverage.

Morris v Snappy Car Rental provides additional support for our holding that ELRAC may not seek indemnification for amounts up to the minimum liability requirements. The primary issue before us in Morris, of course, was whether a rental company, by having its renters sign an indemnification clause, may “legally disclaim that portion of its liability which exceeds the amount for which motor vehicle owners are required to be insured under sections 388 and 370 of the Vehicle and Traffic Law” (84 NY2d, at 28 [emphasis added]). Answering that question, we held that an indemnification agreement for damages above and beyond the statutorily required insurance may be enforced, since section 388 of the Vehicle and Traffic Law was not “intended to go so far as to abrogate the right to indemnification” {id., at 28). Morris noted, however, that a rental company could not, by an indemnification clause, circumvent its obligation to provide the minimum insurance required by the Vehicle and Traffic Law. Rather, we expressed approval for the Appellate Division’s holding that the renter was required to indemnify the rental company “only to the extent that [the company’s] liability exceeds its statutorily mandated liability coverage” (Morris v Snappy Car Rental, 189 AD2d 115, 123), stating that the Appellate Division’s ruling was “unquestionably correct” (84 NY2d, at 27).

We reject ELRAC’s argument that, because it is self-insured, it is not subject to the minimum liability insurance requirements. To be sure, self-insurance is different from insurance in that the self-insurer has assumed the risk of personally satisfying any tort judgments against it (see, Guercio v Hertz Corp., 40 NY2d 680, 684 [“By undertaking to assure payment of judgments, the owner does not become an ‘insurer’ of anything other than his own ability to pay for damages for which he is legally responsible”]). Here, however, we are called upon to determine the requirements placed on rental companies by section 370 of the Vehicle and Traffic Law. And it is well settled that section 370 imposes the same requirements on rental companies, regardless of whether they self-insure or purchase outside insurance.

In Allstate Ins. Co. v Shaw (52 NY2d 818), this Court held that companies that self-insure under section 370 (3) must provide the same minimum coverage as companies that purchase insurance policies or post surety bonds under section 370 (1). Specifically, in Allstate, the Court held that a self-insured automobile leasing company was required to provide uninsured motorist coverage, which all motor vehicle liability insurance policies were required to provide under the Insurance Law. The Court stated that the provision in section 370 (3) permitting self-insurance was “in no way intended to decrease the insurance protection presently available” {id., at 820). Indeed, the Court rejected the dissent’s argument that self-insurers were exempt from the minimum coverage requirements of section 370 (1), stating, were “the issue of minimum coverage before us, we cannot believe that such a strained and narrow interpretation of the statute would be upheld” (id., at 821). Significantly, ELRAC itself acknowledged its duty to provide primary insurance for its rental cars, averring in its application for a certificate of self-insurance that it will “provide primary coverage at all times.”

Nor do we accept ELRAC’s argument that renters are not operating the vehicles “in the business of the owner” within the meaning of Vehicle and Traffic Law § 370 (1) (b). ELRAC’s business is to rent cars, and customers who drive cars rented from ELRAC are operating the vehicles within the scope of that business. Indeed, ELRAC owns its fleet of cars for the very purpose of renting them to others. By subjecting rental car companies to the requirements of section 370, the Legislature obviously sought to ensure that rental cars — when operated by renters — were covered by a minimum amount of insurance. Otherwise there would be little purpose in including rental companies within the scope of the statute (see also, Mironov v New York Mut. Underwriters, 147 AD2d 761 [driver of taxicab was operating vehicle in the business of the owner], lv denied 74 NY2d 615; Fidelity & Cas. Co. v Russell, 31 AD2d 4, 6-7 [same], affd 26 NY2d 678).

Finally, we address the renters’ argument that the antisubrogation rule precludes ELRAC from enforcing the indemnification clause. Subrogation is an equitable doctrine that “entitles an insurer to ‘stand in the shoes’ of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse” (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294; see generally, 16 Couch, Insurance 3d, ch 223). If, for example, an insured is driving a car and is hit and injured by another driver, the insured may file a claim with her insurer. The insurer then has the right, under the common law of subrogation, to “stand in the shoes” of the insured and seek recompense from the third-party tortfeasor for the amount paid to the insured, provided that the insured has been made whole (see, Winkelmann v Excelsior Ins. Co., 85 NY2d 577). This Court has long recognized an insurer’s equitable right to bring a subrogation action against a third party whose wrongdoing has caused a loss to its insured (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 471; Ocean Acc. & Guar. Corp. v Hooker Electro-Chem. Co., 240 NY 37 [1925]).

There is, however, an exception to the right of subrogation, termed the antisubrogation rule. Under that rule, an “insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered * * * even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived” (Pennsylvania Gen. Ins. Co. v Austin Powder Co., supra, at 468; see also, Jefferson Ins. Co. v Travelers Indem. Co., 92 NY2d 363). In other words, an insurer may not step into the shoes of its insured to sue a third-party tortfeasor — if that third party also qualifies as an insured under the same policy — for damages arising from the same risk covered by the policy. This rule applies even if the third-party tortfeasor has expressly agreed to indemnify the insured for the loss. The purpose of this rule is to prevent an insurer from using the right of subrogation to avoid paying coverage that is due under the policy (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., supra, at 471). Additionally, the antisubrogation rule limits the instances in which an insurer and its insured have adverse interests, which might undercut an insurer’s incentive to provide a vigorous defense to its insured (see, id., at 472).

In Pennsylvania General, defendant Austin Powder rented a truck from Bison Ford and agreed to indemnify Bison for any liability incurred from the use of the vehicle. The rental agreement also required Bison to obtain primary insurance for the truck. The truck exploded while being used by Austin Powder. Bison’s insurer (Liberty Mutual) sought to subrogate itself to Bison’s rights and obtain indemnification from Austin Powder. This Court rejected the indemnification claim, holding that since Austin Powder qualified as an additional insured under the policy purchased by Bison, Liberty Mutual was seeking indemnification from its own insured, in violation of the antisubrogation rule (see, 68 NY2d, at 471-473). Similarly, in Jefferson Ins. Co. v Travelers Indem. Co. (supra, 92 NY2d 363), this Court held that an insurance company could not step into the shoes of its insured to seek indemnification against a permissive operator of a motor vehicle who had agreed to indemnify the owner, who was the named insured. The Court stated that for “the purposes of the anti-subrogation rule, there is simply no reason for treating a ‘permissive user,’ ” who also qualified as an insured under the policy, “differently than a named insured” {id., at 374-375). Indeed, an insurer that provides coverage for permissive users “should not be surprised to pay claims that it covered” {id., at 375).

While the present cases do not involve subrogation— since ELRAC is not seeking to step into the shoes of its insureds to sue responsible third parties — the policy behind the antisubrogation rule also supports the result here. As in Pennsylvania General, allowing ELRAC to enforce the indemnification agreement for sums up to the statutory minimum coverage requirements would, in effect, permit the insurer “ ‘to pass the incidence of the loss * * * from itself to its own insured and thus avoid the coverage’ ” that it is obligated to provide (Pennsylvania Gen. Ins. Co. v Austin Powder Co., supra, at 471 [quoting Home Ins. Co. v Pinski Bros., 160 Mont 219, 225-227, 500 P2d 945, 949]). ELRAC must pay the coverage that it is statutorily bound to provide. Notably, here, if ELRAC had purchased an insurance policy, and its carrier had paid the claims, the antisubrogation rule would bar the carrier from stepping into ELRAC’s shoes and suing the renters to enforce the indemnification agreements for sums up to the statutory minimum required coverage.

Contrary to ELRAC’s contention, self-insurers are not immune from antisubrogation principles (see, Lo Piano v Hunter, 173 Ariz 172, 174-176, 840 P2d 1037, 1039-1041 [applying antisubrogation rule to self-insured trust fund]; Group Hospitalization Med. Serv. v Smith, 236 Va 228, 230-232, 372 SE2d 159, 160-161 [self-insured health plan was subject to antisubrogation statute]). By electing to self-insure under section 370, ELRAC undertook the obligation to provide primary insurance coverage for itself and its permissive users up to the statutory mínimums. With that, ELRAC undertook all the duties and responsibilities of an insurer. As noted, ELRAC may not, merely because it is a self-insurer, decrease the obligations that it owes to its insureds (see, Allstate Ins. Co. v Shaw, supra, 52 NY2d, at 820).

For amounts above the statutory mínimums, however, ELRAC may enforce the indemnification clause in its rental agreements. ELRAC is not statutorily bound to provide additional coverage, nor did it voluntarily undertake any obligation to do so. Thus, there is no legal basis to void the indemnification agreement for amounts exceeding the mandatory mínimums. Indeed, to further “abrogate the right of indemnification” would disparage “the important countervailing right of freedom of contract” (Morris v Snappy Car Rental, supra, 84 NY2d, at 28-29). Further, antisubrogation principles do not bar ELRAC from seeking indemnification for amounts exceeding the statutory limits (see, North Star Reins. Corp. v Continental Ins. Co., supra, 82 NY2d, at 296 [antisubrogation rule did not apply where exclusions rendered policy inapplicable to the loss]; Curran v City of New York, 234 AD2d 254, 255 [holding that the antisubrogation rule applied only up to the policy limits of a liability policy]). Similarly, since section 370 specifies no minimum insurance requirement for property damage, ELRAC may seek indemnification from its renters for property damage awards to the extent otherwise legally permissible.

In sum, Vehicle and Traffic Law § 370 requires rental car companies to provide primary insurance to their renters up to the minimum liability limits provided by the statute. Thus, the indemnification clause in ELRAC’s rental agreements, which seeks to disclaim that duty and assign the risk to the renters themselves, is unenforceable to that extent. The indemnification clause, however, if otherwise valid, is enforceable for amounts exceeding the statutory minimum liability requirements. We therefore remit all four cases to Supreme Court for determinations, under the proper legal standard, of the amounts, if any, for which ELRAC may seek indemnification in each case.

Accordingly, in ELRAC v Ward and American Home Assur. Co. v ELRAC, the orders of the Appellate Division should be reversed, with costs, and the cases remitted to Supreme Court for further proceedings not inconsistent with this Opinion. In Ward v ELRAC and ELRAC v American Home Assur. Co., the orders of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the cases remitted to Supreme Court for further proceedings not inconsistent with this Opinion.

Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

In ELRAC v Ward: Order reversed, etc.

In Ward v ELRAC: Order, insofar as appealed from, reversed, etc.

In American Home Assur. Co. v ELRAC: Order reversed, etc. In ELRAC v American Home Assur. Co.: Order, insofar as appealed from, reversed, etc. 
      
      . While the case was on appeal to the Appellate Division, ELRAC settled the underlying personal injury action for $75,000. ELRAC contributed $50,000 toward the settlement, and Seaton contributed $25,000. ELRAC, however, reserved its right to contractual indemnification pursuant to Supreme Court’s order.
     
      
      . The law requires that the bond or insurance policy have a maximum liability of $50,000 for bodily injury, $100,000 for death and $10,000 for property damage (see, Vehicle and Traffic Law § 370 [1] [a], [b]).
     
      
      . Similarly, section 3420 (e) of the Insurance Law requires automobile insurance policies to cover not only the named insured but also “any person operating or using the [vehicle] with the permission, express or implied, of the named insured.”
     
      
      . The primary coverage required by section 370, of course, includes a duty to defend (see, Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141, 145 [the “duty to defend arises whenever the allegations in the complaint against the insured fall within the risks covered by the insurance policy”]; see also, ACP Servs. Corp. v St. Paul Fire & Mar. Ins. Co., 224 AD2d 961, 963 [rental company’s insurer had duty to defend driver of rental vehicle]).
     
      
      . ELRAC does not argue that any other statutory language relieves it of the obligation to insure the renters up to the minimum liability limits.
     