Baldinger v. Consolidated Mut. Ins. Co.
| Decision Date | 18 December 1961 |
| Parties | Barbara Jane BALDINGER, by her guardian ad litem Stanley Baldinger; and Stanley Baldinger, Respondents, v. CONSOLIDATED MUTUAL INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Bernard Helfenstein, Brooklyn, for appellant; Martin M. Kolbrener, New York City, of counsel.
Marvin George Florman, New York City, for respondents.
Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action pursuant to section 167 of the Insurance Law, to compel the defendant insurance company to pay a judgment recovered by the plaintiffs against its insured under a 'Comprehensive Personal Liability Policy,' the defendant appeals: (1) from an order of the Supreme Court, Nassau County, entered April 27, 1961 granting summary judgment to the plaintiffs, pursuant to rule 113 of the Rules of Civil Practice; and (2) from the judgment entered thereon the same day.
Order and judgment affirmed, with $20 costs and disbursements.
The judgment sued upon, Baldinger v. Banks, 26 Misc.2d 1086, 201 N.Y.S.2d 629, was rendered in an action for damages for assault and battery by the infant plaintiff and by her father, against one Allan Banks, an infant six years of age. The judgment was based upon findings that Allan Banks 'intended to force the infant plaintiff to leave the place where she was standing, and did in fact intend an offensive contact for the purpose of forcing her to leave said place,' but that Allan Banks 'did not intend to cause injury to the infant plaintiff.' However, the infant plaintiff did sustain, among other injuries, a fractured elbow.
Allan Banks was an 'insured' under the insurance policy issued by the defendant to his father. Thereunder, the defendant was obligated 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person.' It was also obligated, under certain conditions and limitations, to pay medical expenses 'to or for each person who sustains bodily injury * * * caused by accident.' It was further provided, however, that the policy was not to apply 'to injury * * * caused intentionally by or at the direction of the insured.' The defendant disclaimed liability on the ground that the judgment sued upon fell within the exclusion clause of the policy.
We are in accord with the determination at Special Term: (a) that the injury for which the plaintiffs recovered judgment against Allan Banks was not caused intentionally but was rather than unintended result of an intentional act; and (b) that in accordance with the provisions of its policy the defendant was required to indemnify its insured against loss occasioned by such injury. If those provisions do not clearly require such indemnity, the most that can be said in defendant's behalf is that they are ambiguous, since they do not clearly express an intention to exclude liability for unintentional injury resulting from a deliberate act of the insured. If the provisions of the policy are ambiguous, any ambiguity must be resolved against defendant (Greaves v. Public Serv. Mut. Ins. Co., 5 N.Y.2d 120, 125, 181 N.Y.S.2d 489, 492, 155 N.E.2d 390, 392).
The rule is well settled that the language used...
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