D. C. G. Trucking Corp. v. Zurich Ins. Co.
| Decision Date | 28 May 1981 |
| Citation | 440 N.Y.S.2d 74,81 A.D.2d 990 |
| Court | New York Supreme Court — Appellate Division |
| Parties | D. C. G. TRUCKING CORP., Respondent, v. ZURICH INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellant; Ed Ryan & Sons Incorporated, Third-Party Defendant-Respondent. |
Paul F. Donohue Associates, Albany (Kenneth G. Varley, Albany, of counsel), for Zurich Ins. Co.
Gordon, Siegel, Mullaney & Gordon, Schenectady (Robert Siegel, Schenectady, of counsel), for respondent.
Bond, Schoeneck & King, Albany (David R. Sheridan, Syracuse, of counsel), for third-party defendant-respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.
Appeal (1) from an order of the Supreme Court at Special Term, entered September 12, 1980 in Schenectady County, which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment against the third-party defendant, and (2) from the judgment entered thereon.
Prior to August 7, 1974, plaintiff, through its president, consulted its insurance agent, Charles W. Merriam & Sons, Inc. (Merriam), to secure liability coverage for its motor fleet. Merriam contacted Ed Ryan & Sons, Inc. (Ryan). The latter obtained both a primary liability policy with $100,000/$300,000 limits from the Continental Casualty Company (Continental) and an umbrella policy from defendant Zurich Insurance Company (Zurich). After one of plaintiff's vehicles was involved in an accident and suit commenced, defendant disclaimed coverage on the ground of lack of notice. The action against plaintiff resulted in a verdict of $200,000. The instant action is one seeking, among other things, a declaration that defendant's disclaimer was wrongful and that defendant was obligated to defend and indemnify plaintiff in the personal injury action. Special Term granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment against third-party defendant Ryan. This appeal ensued.
Defendant justifies its disclaimer and urges reversal based, inter alia, on a breach of section VIII, paragraph 3(a) of the umbrella policy which reads, insofar as herein pertinent, as follows:
3. Insured's Duties in the Event of Occurrence, Claim or Suit.
(a) In the event of an occurrence which may reasonably be expected to involve this policy, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
There is no factual dispute. The record demonstrates that Ryan was the duly authorized agent of both insurance companies and could receive notice of an occurrence or accident on behalf of the insurers in question; that Ryan received from plainti...
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