Farmingdale Fire Dist. v. Government Emp. Ins. Co.

• Decision Date: 13 February 1969
• Citation: 58 Misc.2d 978,297 N.Y.S.2d 257
• Parties: FARMINGDALE FIRE DISTRICT and the Travelers Indemnity Company, Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Frederick B. May, Barbara Goss and Kenneth Goss, Defendants.
• Court: New York Supreme Court

Page 257

297 N.Y.S.2d 257

58 Misc.2d 978

FARMINGDALE FIRE DISTRICT and the Travelers Indemnity Company, Plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Frederick B. May Barbara Goss and Kenneth Goss, Defendants.

Supreme Court, Special Term, Nassau County, Part III.

Feb. 13, 1969.

Montfort, Healy, McGuire & Salley, Garden City, for plaintiffs.

DeSantis, McGarry & Hargous, New York City, for defendant May.

MacIntyre, Burke, Smith & curry, Commack, for codefendants Goss.

MEMORANDUM

SOL M. WACHTLER, Justice.

In this action the plaintiffs seek a judgment of this court declaring that a liability policy issued by the defendant Government Employees Insurance Company, hereinafter called GEICO, covers the plaintiff Farmingdale Fire District as an unnamed insured under the terms of the policy.

The defendant May was a volunteer fireman who, while responding to a fire alarm in a passenger vehicle which he owned, became involved in an accident with a car owned and operated by the defendant Kenneth Goss. As a result of the accident, the defendant Barbara Goss, a passenger in the car operated by her husband, Kenneth, sustained bodily injury. An action is pending in this court to recover damages for these claimed injuries with the plaintiffs in that action seeking to impose liability upon both the defendants May and the Fire District. Liability is sought to be imposed as against the Fire District inasmuch as the defendant May is claimed to have been acting within the scope of his duties as a volunteer fireman at the time of the accident.

At the time of the accident, the Fire District was also insured under a policy of liability insurance which, among other things covered the liability of the Fire District for non-owned vehicles. This policy was issued by the plaintiff Travelers, which seeks the further judgment of this court declaring that the said policy would be excess insurance under the GEICO policy.

The first question to be determined by the court is whether or not the GEICO policy provides coverage for the Fire District. Part I of the policy in question provides coverage for the liability of the insured for bodily injury and property damage with the policy defining the persons insured. There seems to be no doubt that the owner and operator of the vehicle, the defendant May, is a named insured and entitled to coverage. It would also appear, and the court so finds, that the Fire District is also insured under subdivision (c) of the definitions of the persons insured which defines as an insured, 'any other person or organization legally responsible for the use of (1) an owned automobile'. Under further definition, the term 'owned automobile' would be the vehicle described in the policy which was owned and operated by the defendant May.

Since the tort action seeks to impose liability against the Fire District by virtue of the allegation that May was using the automobile within the scope of his duties as a volunteer fireman, the Fire District would clearly be an additional insured under the policy.

Defendants argue that a reading of Section 205--b of the General Municipal Law would compel a contrary conclusion. Pursuant to this section, it is their contention that:

1) Since May was a volunteer fireman and a member of the Fire District responding to an alarm at the time of the accident he would be exempt from liability, and 2) Since the section explicitly states that the Fire District would be liable for the operation of vehicles owned by them, it would exclude liability for...