Farmers Fire Ins. Co. v. Kingsbury

• Decision Date: 13 April 1983
• Docket Number: No. 1,No. 2,1,2
• Citation: 118 Misc.2d 735,461 N.Y.S.2d 226
• Court: New York Supreme Court
• Parties: FARMERS FIRE INSURANCE COMPANY, Plaintiff, v. Rick KINGSBURY, Jan Kingsbury, David Kingsbury, Donna Kingsbury and Myron Kingsbury, Defendants. ActionDavid KINGSBURY, c/o R & M Farms, Plaintiff, v. UTICA MUTUAL INSURANCE COMPANY, Rick Kingsbury and Jan Kingsbury, Defendants. Action

Page 226

461 N.Y.S.2d 226

118 Misc.2d 735

FARMERS FIRE INSURANCE COMPANY, Plaintiff, v. Rick KINGSBURY, Jan Kingsbury, David Kingsbury, Donna

Kingsbury and Myron Kingsbury, Defendants. Action No. 1.

David KINGSBURY, c/o R & M Farms, Plaintiff, v. UTICA MUTUAL INSURANCE COMPANY, Rick Kingsbury and Jan

Kingsbury, Defendants. Action No. 2.

Supreme Court, Delaware County.

April 13, 1983.

Bouck, Holloway & Kiernan, Albany, for Farmers Fire Ins. Co.

Paternoster, Estes & O'Leary, Walton, for David Kingsbury, Donna Kingsbury and Myron Kingsbury.

Kennedy & Shank, Delhi, for Jan Kingsbury.

Coughlin & Gerhart, Binghamton, for Utica Mut. Ins. Co.

Rick Kingsbury, pro se.

DECISION

ROBERT A. HARLEM, Justice Presiding.

In these consolidated declaratory judgment actions, each insurance carrier moves for summary judgment under CPLR 3212.

On July 7, 1978, at the home of Rick and Jan Kingsbury, an injury was suffered by David Kingsbury while helping his brother, Rick Kingsbury, replace a bald spare tire to be used on the car of Jan Kingsbury. The tire was obtained from the father of Rick Kingsbury, and it was mounted on a rim which was not appropriate for the car. It was while the tire was being removed from the rim to be placed on a proper wheel that a crowbar slipped from the hand of Rick Kingsbury striking David in the eye, and resulting in a total loss of vision of the right eye.

It develops that Rick Kingsbury did not then drive an automobile and was unlicensed. The car belonged to his wife, Jan Kingsbury, and it had the customary liability coverage issued by Utica Mutual Insurance Company. The coverage is limited to $10,000.00. At the same time, Rick and Jan Kingsbury were also covered by a homeowners insurance policy issued by Farmers Fire Insurance Company with insurance in the amount of $100,000.00. This policy excluded any bodily injury "arising out of ownership, maintenance, operation, use, loading or unloading of any vehicle owned or operated by, or rented or loaned to any insured." The automobile liability policy provided coverage for bodily injury "arising out of the ownership, maintenance or use of the owned automobile." It also afforded coverage to anyone using the vehicle with the permission and consent of the insured.

Both insurance companies have served written notice of disclaimer of coverage in an action brought by David Kingsbury against Rick and Jan Kingsbury. These declaratory judgment actions seek a determination of the obligations of the respective carriers to provide coverage.

It is fundamental that where a term in a contract of insurance is unambiguous it will be given its ordinary, common sense meaning, but where such a term is ambiguous it will be construed in a manner that is most favorable to the insured (State Farm Mutual Automobile Ins. Co. v. Westlake, 35 N.Y.2d 587, 364 N.Y.S.2d 482, 324 N.E.2d 137; Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 418 N.Y.S.2d 76). This is particularly true where the ambiguous provision is exclusionary in nature (Thomas J. Lipton, Inc. v. Liberty Mutual Ins. Co., 34 N.Y.2d 356, 357 N.Y.S.2d 705, 314 N.E.2d 37; Sincoff v. Liberty Mutual Fire Ins. Co., 11 N.Y.2d 386, 230 N.Y.S.2d 13, 183 N.E.2d 899; American Home Assurance Co. v. Hartford Ins. Co., 74 A.D.2d 224, 427 N.Y.S.2d 26; Allstate Ins. Co. v. Klock Oil Co., 73 A.D.2d 486, 426 N.Y.S.2d 603). It has also been indicated that where a coverage clause in an automobile liability policy and an exclusionary clause in a homeowners policy employ identical language they should be construed identically in order to avoid the possibility that some occurrence could escape coverage under both policies (United Services Automobile Assoc. v. Aetna Casualty & Surety Co., 75 A.D.2d 1022, 429 N.Y.S.2d 508).

There is abroad a judicial policy of liberal construction of insurance policies in order to give both the ostensible insured and any victim of a personal injury the benefit of insurance coverage (Roche v. U.S. Fidelity & Guaranty Co., 247 A.D. 335, 287 N.Y.S. 38, aff'd 273 N.Y. 473, 6 N.E.2d 410). The facts in the instant action are distinguishable from those wherein a liberal construction is put forth, in that there is a homeowners policy which would be available in the event that the automobile insurance did not apply. The decision in this action would not pose the problems encountered except for the fact that there is the homeowners policy. In its absence, there is no question that the automobile liability carrier would be found to be obligated to provide coverage. Since the homeowners policy would afford so many more dollars of insurance coverage, it may seem desirable to hold them as having a duty to extend protection and indemnity. While such a result may seem pragmatically desirable, it could...