Electric Ins. Co. v. Boutelle
| Decision Date | 03 July 1986 |
| Citation | 504 N.Y.S.2d 577,122 A.D.2d 332 |
| Parties | ELECTRIC INSURANCE COMPANY, Appellant, v. Jeffrey BOUTELLE et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Buchyn, O'Hare & Werner (Paul J. Campito, of counsel), Schenectady, for appellant.
Joseph T. Wilkinson, Broadalbin, for Jeffrey Boutelle, respondent.
Parisi, De Lorenzo, Gordon, Pasquariello & Weiskopf, P.C. (Caren Z. Schindel, of counsel), Schenectady, for Kathleen A. Holck and another, respondents.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term (Lomanto, J.), entered November 21, 1985 in Schenectady County, which denied plaintiff's motion for summary judgment.
Plaintiff insurance company issued a standard automobile liability policy to defendant Richard J. Holck (Holck) insuring his 1982 Dodge. Under the policy, coverage extended to any person using the vehicle, but it excluded any such person "using [the] vehicle without a reasonable belief that that person is entitled to do so". On August 7, 1984, the vehicle was being driven by Holck's daughter, defendant Kathleen A. Holck (Kathleen). Her friend, defendant Jeffrey Boutelle, was a passenger in the front seat. It is uncontested that the vehicle went out of control as a result of Boutelle's foot depressing the accelerator. In the accident that followed, Kathleen was seriously injured. She brought suit against Boutelle for her injuries. After Holck demanded that plaintiff defend in that action, plaintiff commenced this action for a judgment declaring that Boutelle was not a covered person under the policy. Depositions of Kathleen and Holck were taken, following which plaintiff made the instant motion for summary judgment. Plaintiff appeals from a denial of that motion.
In our view, the evidence submitted on the motion established, as a matter of law, that Boutelle was not covered under the policy. Plaintiff's supporting papers on the motion included the police accident report and the verified answer of Boutelle. These constituted admissible evidence that Kathleen and not Boutelle was operating the vehicle at the time of the accident. In the common meaning of the phrase "using [the] covered vehicle", some purposeful exercise of control is required by the person claiming to be covered under the policy (cf. Witherstine v. Employers' Liability Assur. Corp., 235 N.Y. 168, 172-173, 139 N.E. 229). Therefore, if Boutelle's depression of the accelerator was...
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