
    Employers Mutual Liability Insurance Company of Wisconsin, Plaintiff, v. Warshaw Construction Corp., et al., Defendants.
    Supreme Court, Special Term, New York County,
    December 13, 1965.
    
      
      Hamburger é Green (Edwin Milkman of counsel), for plaintiff. M. Carl Levine, Morgulas & Foreman (David Morgulas & Allen Ross of counsel), for defendants.
   Charles G. Tierney, J.

Plaintiff moves for summary judgment. The action is based on a general liability policy and is brought to recover the earned premium due and unpaid at the end of the contract period. Indorsements had been issued after modification for increase in premium rates as promulgated under the Insurance Law by the Mutual Insurance Rating Bureau in accordance with applicable experience rating plans. The rates may not be questioned here and any objection thereto must be raised under Insurance Law review procedures which when exhausted are subject to judicial review by an article 78 CPLR proceeding. Defendants insist they do not question the rates now although they are disputed. They urge breach of contract in that plaintiff failed to submit to the bureau the actual experience information to enable it to reach a proper and just rating. The policy provides: ‘ ‘ Upon termination of this policy the earned premium shall be computed in accordnce with the company’s rules, rates, rating plans, premiums and minimum premiums applicable to this insurance. ’ ’

In addition, defendants argue that the administrative rules of the General Liability Experience Rating Plan approved by the Superintendent of Insurance are a part of the policy and rule 1(b) provides: “ The application for experience rating shall contain the entire data with respect to the risk for that portion of the experience period covered by the applicable carrier. The rating calculation shall, insofar as possible, be worked up by the carrier.”

The experience data thus furnished by the carrier, say the defendants, is not subject to review by the bureau in any administrative review which defendants may seek to pursue. No authority is furnished in support of that proposition. What defendants complain of is the rate. No alleged breach of contract of which defendants complain can defeat recovery of a proper premium properly computed and owing and unpaid. Credit for dividend cannot be given, since good faith resistance to payment of premium is not now shown. If administrative review suggests it, proper action for rebate and/or for recovery of unpaid dividend would be in order. In all the circumstances, the motion is granted.  