Duncan Petroleum Transport, Inc. v. Aetna Ins. Co.
| Decision Date | 29 August 1983 |
| Citation | 96 A.D.2d 942,466 N.Y.S.2d 394 |
| Parties | In the Matter of DUNCAN PETROLEUM TRANSPORT, INC., Petitioner-Respondent, v. AETNA INSURANCE COMPANY, Appellant, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Martin & Fallon, Huntington (Thomas F. Fallon, Huntington, of counsel), for appellant.
Curtis, Hart & Zaklukiewicz, Merrick (Edward J. Hart, Merrick, of counsel), for petitioner-respondent.
Before LAZER, J.P., and GIBBONS, THOMPSON and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
In a declaratory judgment action to determine the duty of Aetna Insurance Company (hereinafter Aetna) to provide coverage under a policy of insurance, Aetna appeals from a judgment of the Supreme Court, Suffolk County, dated November 4, 1981, which found that it was obligated to provide coverage under the policy for claims arising from an accident on April 28, 1976.
Judgment reversed, on the law, with costs, and it is hereby declared that Aetna is not required to provide coverage under the policy in issue for claims arising from the accident on April 28, 1976.
On April 28, 1976 two employees of Five Boro Fuel Transport, Inc. (hereinafter Five Boro) were killed in an explosion while transferring gasoline from a Duncan Petroleum Transport, Inc. (hereinafter Duncan) tractor-trailer to a Five Boro tractor-trailer. After the initiation of lawsuits to recover for wrongful death and conscious pain and suffering, etc., on behalf of decedents, Duncan brought the instant declaratory judgment action seeking a ruling that Aetna was obligated to provide coverage under a certain comprehensive general liability policy. The policy provided, in pertinent part:
The policy defined "automobile" to mean "a land motor vehicle, trailer or semi-trailer designed for travel on public roads".
Despite an insurer's broad duty to defend and despite an insurer's difficult burden of establishing that a policy exclusion is unambiguously applicable to the pleaded allegations of the claims in issue, it is clear that Aetna has fully met its burden by demonstrating that the aforesaid exclusion of its comprehensive general liability policy is applicable to the instant situation. Furthermore, the provision governing the parking of an automobile on premises owned by the insured simply has no relevance to this case. Ambiguity simply should not be found where none exists.
Contrary to the conclusion reached by Special Term, the tractor-trailer owned by the insured and involved in the accident comes within the policy definition of "automobile" (see, generally, Vehicle and Traffic Law, §§ 125, 359, subd. [k] ). Furthermore, the record on appeal provides nothing to challenge the compelling conclusion that the accident arose out of "the ownership, maintenance, operation, use, loading or unloading" of the tractor-trailer. Duncan seeks to avoid the impact of the clear, expansive exclusion in the policy by attributing alleged nonexcluded factors as causes of the accident. Duncan claims that the accident was caused by such factors as, inter alia, a failure to inspect the vehicles, a failure to train and supervise personnel, the use of dangerous procedures for the transfer of gasoline, and improper maintenance and design of the vehicles. Nothing about the foregoing asserted factors, even if they were actually involved in causing the explosion, would negate the unequivocal and unchallenged fact that the accident arose out of the loading or unloading of the automobile. Duncan's factors of causation serve to do no more than provide reasons or subfactors explaining why the accident arose out of the loading or unloading of the vehicle. Acts or omissions which predated the loading operation but which allegedly brought about the explosion during the loading do not prevent invocation of the exclusion clause. Whatever the originating reason for the explosion, it arose out of the use of the vehicles while they were being loaded (see Heiser v. Gibson, 386 F.Supp. 901; State Farm Fire & Cas. Co. v. Camara, 63 Cal.App.3d 48, 133 Cal.Rptr. 600).
The policy provision "but this exclusion does not apply to the parking of an automobile on premises owned by * * * or controlled by the named insured * * * if such automobile is not owned by or rented * * * to any insured" has no relevance to this case (emphasis supplied). The explosion resulted from the very specific loading and unloading of Duncan's tractor-trailer. If the "parking" exception encompasses accidents occurring when a tanker is being loaded or unloaded in a stationary position, then the "loading or unloading" exclusion becomes a nullity for all practical purposes unless it relates to vehicles in motion while being loaded or unloaded. The policy cannot be read to achieve such an absurd result. The dissenter's arguments--not raised by Duncan itself--would render the intended broad exclusionary provision of the comprehensive general liability policy of no value and eliminate the loading and unloading exclusion.
Accordingly, there must be a reversal and a declaration that Aetna is not obligated to defend Duncan under its general liability policy for claims arising from the accident on April 28, 1976.
GIBBONS, J., dissents and votes to modify the judgment appealed from, with the following memorandum:
On April 28, 1976, William H. Shine and Charles W. Rittenhouse, two employees of Five Boro Fuel Transport, Inc., were critically injured in an explosion while pumping gasoline from a trailer owned by Duncan Petroleum Transport, Inc. (hereinafter Duncan) into a trailer owned by Five Boro Fuel Transport, Inc. Subsequently, both men died as a result of the injuries suffered in the explosion. Suits were brought to recover for wrongful death and conscious pain and suffering, etc., against various defendants, including Duncan.
It is uncontested that, at the time of the accident, Duncan had two insurance policies with Aetna. One provided automobile liability coverage with limits of $100,000 per person and $300,000 per occurrence. The other is entitled "Comprehensive General Liability Insurance" and provides $300,000 coverage per occurrence for "all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage". Additionally, Duncan carried various policies of insurance with other companies in excess of Aetna's coverage.
Aetna assumed, on behalf of Duncan, the defense of these actions under the automobile liability policy. However, one of the excess carriers, United States Liability Insurance Company, requested that it be permitted to assume the defense. A "Consent to Change Attorney" was entered into on April 6, 1981, thereby substituting counsel assigned by the excess carrier in place of Aetna's counsel. By petition dated May 15, 1981, Duncan, through the services of the counsel from the excess carrier, sought a declaration that the comprehensive general liability policy between it and Aetna was in force on the day of the accident; that Aetna has a duty to defend it under that particular policy; and that Aetna must indemnify petitioner to the limits of that policy for any liability incurred as a result of the two wrongful death law suits. Aetna opposed the petition on various grounds, and the case came on for a nonjury trial. The trial court held for petitioner Duncan.
The primary argument made by Aetna at trial and on appeal is that the comprehensive general liability policy does not cover the incident as described in the underlying complaints. Reliance is placed on an exclusion in the policy which reads as follows:
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