Bundschu v. Travelers Ins. Co.
| Decision Date | 21 December 1964 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Emil BUNDSCHU and Martha Bundschu, Respondents, v. The TRAVELERS INSURANCE COMPANY and Julius Grodson, etc., Appellants. |
Watts, Oakes & Vander Voort, Middletown, for appellant; V. Frank Cline, Middletown, of counsel.
Levinson, Jenkins & Cassidy, Newburgh, for respondent; Ernest M. Levinson, Newburgh, of counsel.
Before BELDOCK, P. J., and UGHETTA, KLEINFELD, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action to declare the plaintiffs Bundschu to be entitled to coverage and protection as insureds under an automobile liability insurance policy which contained the usual 'loading and unloading' provision, issued by the defendant Travelers Insurance Company to the co-defendant Grodson, such coverage being sought with respect to a negligence action brought against the Bundschus by one Parker (an employee of Grodson) to recover damages for personal injury sustained by Parker on the Bundschus' premises while he (Parker) was engaged in unloading certain merchandise from Grodson's truck, defendants Grodson and Travelers Insurance Company appeal from a judgment of the Supreme Court, Orange County, entered November 20, 1962 after a nonjury trial upon the court's opinion-decision rendered pursuant to stipulated facts, which declared: (1) that the plaintiffs Bundschus are insured under the said policy; and (2) that as such they are entitled to be defended by the Travelers Insurance Company in the pending tort action against them; and (3) that the Travelers Insurance Company is liable within the policy limits for any judgment which may be rendered against the Bundschus in the said pending tort action against them.
Judgment modified on the law and the facts without costs, as follows: (1) by striking out from the second decretal paragraph the subparagraphs numbered 1, 2 and 3 declaring the plaintiffs to be insureds under the policy, etc., and (2) by substituting therefor subparagraphs declaring: (a) that the plaintiffs are not such insureds under said policy; (b) that plaintiffs are not entitled to be defended by the Travelers Insurance Company in the pending tort action against them; and (c) that Travelers is not liable under said policy for any judgment which may be rendered against plaintiffs in the said pending tort action against them. As so modified, the judgment is affirmed without costs. The findings of fact contained or implicit in the opinion-decision of the trial term which may be inconsistent herewith are reversed, and now findings are made as indicated herein.
The facts out of which this action arose are as follows:
The defendant Grodson, who conducted a farm and grain business, owned several trucks upon which the defendant Travelers Insurance Company had issued a comprehensive liability insurance policy, which provided for written notice of an accident by or on behalf of the insured 'as soon as practicable.' Grodson also had a workmen's compensation policy for his employees which likewise had been issued to him by Travelers.
On March 18, 1958, one Parker and one Pulverent, Grodson's employees, were unloading from his truck bags of grain and feed and delivering them into the chicken house of the plaintiffs (Bundsch...
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