D'Aquilla Bros. Contracting Co. v. Hartford Acc. & Indem. Co., 1

• Decision Date: 11 December 1961
• Docket Number: No. 2,No. 1,1,2
• Parties: D'AQUILLA BROTHERS CONTRACTING CO., Inc., Plaintiff-Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Respondent. (Action) HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Respondent, v. LIBERTY MUTUAL INSURANCE COMPANY and D'Aquilla Brothers Contracting Co., Inc., Defendants-Appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 409

222 N.Y.S.2d 409

15 A.D.2d 509

D'AQUILLA BROTHERS CONTRACTING CO., Inc., Plaintiff-Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Respondent.

(Action No. 1.) HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Respondent, v. LIBERTY MUTUAL INSURANCE COMPANY and D'Aquilla Brothers Contracting Co., Inc., Defendants-Appellants (Action No. 2.)

Supreme Court, Appellate Division, Second Department.

Dec. 11, 1961.

Thomas F. Keane, Brooklyn, for appellant; Albert P. Thill, Brooklyn, of counsel.

Harold Schaffner, New York City, for respondent; Joseph L. Schilling, New York City, of counsel.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In two consolidated actions: Action No. 1 being by plaintiff D'Aquilla Brothers Contracting Co., Inc., a trucking corporation, pursuant to section 167 of the Insurance Law, to compel the insurer, defendant Hartford Accident and Indemnity Company, in accordance with its contractor's policy issued to its insured, Frens Construction Company, Inc., an excavation subcontractor, to pay a judgment for contribution obtained by the plaintiff trucking corporation against said subcontractor which the latter failed to pay; and Action No. 2 being by the Hartford Company against the trucking corporation and its insurer, defendant Liberty Mutual Insurance Company, to declare that Liberty by virtue of its automobile policy issued to the trucking corporation is solely liable for the payment of the said judgment, the trucking corporation and its said insurer Liberty, appeal from a judgment of the Supreme Court, Queens County, entered April 6, 1960, upon the decision of the court (22 Misc.2d 733, 193 N.Y.S.2d 502) after a nonjury trial, which is in favor of Hartford, the defendant in Action No. 1 and the plaintiff in Action No. 2; which dismissed on the merits the complaint in Action No. 1; and which, with respect to Action No. 2, declared: (1) that Liberty's policy covered both the excavation subcontractor and its crane operator 'as an additional insured;' (2) that Hartford's policy did not cover the excavation subcontractor's crane operator; (3) that said subcontractor is entitled to recoup its loss from him; and (4) that Liberty is solely responsible for the payment of the trucking corporation's judgment for contribution against said subcontractor.

Judgment modified on the law and the facts as follows:

(1) By striking out the first decretal paragraph dismissing the trucking corporation's complaint in Action No. 1;

(2) By substituting, in lieu of such first decretal paragraph, a paragraph directing recovery in Action No. 1 by the trucking corporation, D'Aquilla Brothers Contracting Co., Inc., against defendant, Hartford Accident and Indemnity Company, for $5,638.88, with interest thereon from July 14, 1955; said sum being one-third of the unpaid $16,916.65 judgment for contribution obtained on such date by the trucking corporation D'Aquilla against the excavation subcontractor, Frens Construction Company, Inc.;

(3) By striking out the fifth and sixth subdivisions of the third decretal paragraph, which declare the the excavation subcontractor Frens has the right to recoup its loss from its employee who operated the crane in the loading of the truck owned by the trucking corporation D'Aquilla, resulting in the accident on August 22, 1952 to one Ralph Marigliano; and which declare that the defendant Liberty, as the sole insurer of the employee of Frens who operated the crane, alone is obligated to pay the said $16,916.65 judgment for contribution entered in favor of the trucking corporation against the excavation subcontractor for the latter's pro rata share of the judgment obtained by Ralph Marigliano; and

(4) By substituting, in lieu of such fifth and sixth subdivisions, the following three subdivisions numbered 5, 6 and 7, respectively:

'5. That the policy of insurance issued by the plaintiff, Hartford Accident and Indemnity Company to the excavation subcontractor, Frens Construction Company, Inc., covered such subcontractor as the named insured, in the loading of the truck owned by the trucking corporation, defendan...