American Fidelity Fire Ins. Co. v. Pardo

• Decision Date: 14 April 1969
• Citation: 299 N.Y.S.2d 521,32 A.D.2d 536
• Parties: AMERICAN FIDELITY FIRE INSURANCE COMPANY, Respondent, v. Jack PARDO et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 521

299 N.Y.S.2d 521

32 A.D.2d 536

AMERICAN FIDELITY FIRE INSURANCE COMPANY, Respondent, v. Jack PARDO et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

April 14, 1969.

Shayne, Dachs, Weiss, Kolbrener & Levy, Mineola, for plaintiff-respondent, Norman H. Dachs, Mineola, of counsel.

Farulolo & Caputi, Mineola, for defendant-appellant, Jack Pardo, Frank J. Faruolo, Jr., Mineola, of counsel.

Watters & Donovan, New York City, for defendant-appellant Motor Vehicle Accident Indemnification Corp., John P. Walsh, Raymond J. Messina, New York City, of counsel.

Before BELDOCK, P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action by an insurance company for a declaratory judgment and an injunction with respect to a liability policy it had issued to cover defendant Pardo's motor vehicles, one of which was involved in an accident, defendants Pardo and Motor Vehicle Accident Indemnification Corporation appeal from a judgment of the Supreme Court, Nassau County, 56 Misc.2d 354, 288 N.Y.S.2d 729, dated February 13, 1968 and made after a nonjury trial upon stipulated facts, which (a) adjudged that at the time of the accident the vehicle was being used as 'a public or livery conveyance' and that the policy does not cover the claims of the other defendants, who were injured in the accident; and (b) enjoined defendants from bringing action against plaintiff based on the accident and the policy.

Judgment reversed, on the law and facts, with one bill of costs to appellants jointly, and judgment granted in favor of defendants declaring (a) that at the time of the accident defendant Pardo's vehicle was not being used as 'a public or livery conveyance,' (b) that the policy's clause excluding coverage if the vehicle was being used as 'a public or livery conveyance' is inapplicable to this accident, and (c) that the policy covers the claims of defendant Pardo and the other defendants who sustained personal injuries or property damage in the accident.

Defendant Pardo operates an employment agency for domestic day workers. He obtained an automobile liability insurance policy from plaintiff covering two cars, one of them a Chevrolet Suburban which he listed in his application for the insurance as being operated for 'Business use'. During a subsequent renewal period he replaced the Chevrolet Suburban with a small Chevrolet truck which he had altered so it could carry 12 passengers. The policy contained clauses excluding coverage of any car, Inter alia, 'while used as a public or livery conveyance.'

In the course of his employment agency business, Pardo transported the domestic day workers to and from the homes at which they worked, if they required and desired transportation. The employers paid the domestics $13 for services rendered; the domestics retained $9.50 and turned $3.50 over to Pardo, whether or not the domestics used his transportation service and regardless of the distance he transported those who used his service.

On June 11, 1965, while Pardo was transporting 12 domestics to their places of employment in his Chevrolet truck, he was involved in the accident in question with another car. Thereafter the plaintiff insurer brought this action. The trial court found for plaintiff and granted the judgment under review, so declaring. In our opinion, that finding and the judgment were erroneous.

Any ambiguity in an insurance policy must be construed against the insurer (Greaves v. Public Service Mut. Ins. Co., 5 N.Y.2d 120, 125, 181 N.Y.S.2d 489, 492, 155 N.E.2d 390, 392), especially where the ambiguity is in an exclusionary clause (Sincoff v. Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386, 390--391, 230 N.Y.S.2d 13, 15--17, 183 N.E.2d 899, 901--902). Moreover, when an exclusionary clause is involved the insurer has the burden of proving that the occurrence came within the exclusionary clause (Sachs v. American Cent. Ins. Co., 34 Misc.2d 687, 230 N.Y.S.2d 126, affd. 19...