Greaves v. Public Service Mut. Ins. Co.

• Decision Date: 08 January 1959
• Citation: 5 N.Y.2d 120,155 N.E.2d 390,181 N.Y.S.2d 489
• Parties: , 155 N.E.2d 390 Joseph GREAVES, Respondent, v. PUBLIC SERVICE MUTUAL INSURANCE CO., Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 489

181 N.Y.S.2d 489

5 N.Y.2d 120, 155 N.E.2d 390

Joseph GREAVES, Respondent, v. PUBLIC SERVICE MUTUAL INSURANCE CO., Appellant, et al., Defendants.

Court of Appeals of New York.

Jan. 8, 1959.

Sidney Advocate, Brooklyn, and E. Edan Spencer, New York City, for appellant.

John Nielsen and George S. Pickwick, New York City, for respondent.

DESMOND, Judge.

On February 15, 1955 defendant-respondent Watson, an employee of L. Davis Trucking Co. (not a party here), was injured while working for Davis at the New York City warehouse of defendant-respondent Bigelow-Sanford Carpet Company, Inc. Greaves, who is the plaintiff-respondent in this declaratory judgment suit, was, as an employee of Bigelow-Sanford, operating a fork lift loading machine at Begelow-Sanford's warehouse. Defendant-respondent Watson drove his employer Davis' truck to the Bigelow-Sanford warehouse to take on a load of carpeting. Waston then backed the Davis truck into the warehouse. Plaintiff Greaves, loading the carpeting onto the Watson-Davis truck with a fork lift machine, is alleged to have caused personal injuries to Watson. Watson claimed and received workmen's compensation from the insurer of his employer Davis. Watson brought also a personal injury action against Bigelow-Sanford Carpet Company, Inc., and against present plaintiff Greaves. In that negligence action Bigelow-Sanford cross-complained against our present plaintiff Joseph Greaves. Greaves sent the summons and complaint to defendant-appellant Public Service Mutual Insurance Co. but that company refused to defend Greaves in the tort case asserting that its automobile liability policy hereafter described and issued to the injured Watson's employer Davis did not insure Greaves.

Greaves then brought this declaratory judgment suit to have it adjudged that he is entitled to protection and coverage under the Public Service Mutual policy issued to the truck owner Davis. Public Service's answer asserted two reasons why Greaves is not entitled to coverage. The first alleged reason is an exclusion stated in the policy as follows:

'Exclusions.

'This policy does not apply: (d) under coverage A, to sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law; or to any obligation for which the insured or any company as his insurer may be held liable under any workmen's compensation law.'

The position of the insurer is that the 'insured' referred to in that exclusion is the named insured Davis and that, since the injured Watson was an employee of the named insured Davis, the policy does not apply since Watson was entitled to and did receive workmen's compensation benefits. The position of Greaves is that although Davis was the named insured, nevertheless Greaves too was specifically made an insured under the policy which specifically includes in the meaning of the word 'insured' the named insured and, also, 'any person while using the automobile * * * provided the actual use of the automobile is by the named insured or with his permission'. Directly following that definition of 'insured' in the policy is insuring agreement VII which states that 'Use of the automobile for the purposes stated includes the loading and unloading thereof.' It is not disputed here that the present plaintiff Greaves was using this insured truck automobile for the 'loading' thereof and so it is undisputed that he is an additional insured. The question, however, is whether the exception as to liability to an injured employee entitled to workmen's compensation applies as to Greaves. The injured man Watson was of course an employee of the named insured Davis but was not an employee of the additional insured Greaves.

In its answer defendant set up another alleged bar to recovery consisting of the alleged failure of plaintiff to give written notice to defendant Public Service Mutual 'as soon as practicable' as required by the policy. Special Term did not pass on this question since it defeated Greaves on the other ground. The Appellate Division, after holding that the 'workmen's compensation' exclusion did not apply to Greaves, held as to timeliness of notice that Greaves gave notice to the insurer as soon as he (Greaves) learned of the policy coverage and 'as soon as practicable'. (168 N.Y.S.2d 111) In its appeal to this court defendant Public Service Mutual does not press the timely notice point and we consider it to be out of the case.

The Special Term in upholding the 'workmen's compensation' exception as a defense wrote an opinion in which the whole reliance was on Standard Surety & Casualty Co. of New York v. Maryland Casualty Co., 281 App.Div. 446, 119 N.Y.S.2d 795, decided by the Fourth Department in March, 1953. In that Standard Surety case the Appellate Division later granted leave to appeal to this court (281 App.Div. 1069, 121 N.Y.S.2d 767) but the appeal was never argued here. Probably the appellant in Standard Surety dropped the appeal because of our decision a month later in Morgan v. Greater New York Taxpayers Mut. Ins. Ass'n, 305 N.Y. 243, 112 N.E.2d 273.

In the present case the Appellate Division held that under the Morgan rule (supra) each individual additional insured although not named as an insured in the policy must be treated as if separately covered by the policy and indeed as if he (additional insured) had a separate policy of...