Greaves v. Public Service Mut. Ins. Co.

• Decision Date: 26 November 1957
• Citation: 168 N.Y.S.2d 107,4 A.D.2d 609
• Parties: Joseph GREAVES, Plaintiff-Appellant, v. PUBLIC SERVICE MUTUAL INSURANCE CO., Willie Watson and Bigelow-Sanford Carpet Company, Inc., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 107

168 N.Y.S.2d 107

4 A.D.2d 609

Joseph GREAVES, Plaintiff-Appellant, v. PUBLIC SERVICE MUTUAL INSURANCE CO., Willie Watson and Bigelow-Sanford Carpet Company, Inc. Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Nov. 26, 1957.

John Nielsen, New York City, of counsel (George S. Pickwick, New York City, atty.), for appellant.

Sidney Advocate, Brooklyn, of counsel (E. Edan Spencer, New York City, atty.), for respondent Public Service Mutual Insurance Co.

Before BREITEL, J. P., and RABIN, FRANK, VALENTE, and McNALLY, JJ.

RABIN, Justice.

On February 15, 1955, plaintiff Greaves was employed by defendant Bigelow-Sanford Carpet Co. at its warehouse. On that date, while Greaves was loading carpet on a truck owned by L. Davis Trucking Company, on Watson, employed by Davis, was injured when a carton or bale of carpet being handled by Greaves slipped and injured Watson.

Davis maintained an automobile liability policy issued by defendant Public Service Mutual Insurance Co. and after Watson had sued Greaves and his employer Bigelow, Greaves called upon Public to defend him on the ground that he was protected by Davis' policy since the injury to Watson occurred while he, Greaves, was in the process of loading Davis' truck. The policy issued to Davis covered any person using the truck with the named insured's permission, such use including the 'loading and unloading thereof.' It is accordingly undisputed that Greaves was an additional insured.

Public, disclaiming any obligation to defend Greaves under the policy issued to Davis, defends this action for a declaratory judgment on two grounds. First, tht it may not be held liable because of an exclusion clause in the policy and second, that notice by Greaves was not timely. The policy contained the following clause which Public contends relieves it of any obligation to cover plaintiff Greaves 'Exclusions

'This policy does not apply: * * *

'(d) under coverage A, to bodily injury to or 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.'

Watson, although an employee of the named insured, was not an employee of the additional insured Greaves. The exclusion clause refers to any employee of the 'insured' and we are required to determine whether, as urged by Public, there was an intention to exclude coverage when the injured party was an employee of any insured. In other words, is the language 'any employee of the insured' to be interpreted as meaning an employee of any of the insureds? To pose the question in another way: Are we to treat the word 'insured' as an all-inclusive unit or are we to consider the insureds--whether named or additional--separately?

It is true that the policy, in one clause, broadly defines the word 'insured' as including the named insured and any additional insured. We do not think this, standing alone, is determinative of the issue here involved. In attempting to ascertain the actual intent of the parties, the definition must be read in the light of, and as qualified by the language employed in the exclusion clause. If there is resultant ambiguity, it should be resolved against the company inasmuch as it wrote the policy. Broadway Realty Co. v. Lawyers' Title Ins. & Trust Co., 226 N.Y. 335, 337, 123 N.E. 754; Killian v. Metropolitan Life Insurance Co., 251 N.Y. 44, 47, 166 N.E. 798, 799; 64 A.L.R. 956; Howell v. John Hancock Mut. Life Ins. Co., 286 N.Y. 179, 185, 36 N.E.2d 102, 104.

As we read the exclusion clause, the basic and underlying purpose apparently was to exclude coverage only as to an insured who either carried, or was required to carry, workmen's compensation insurance for the protection of an injured employee. The very language of the clause indicates that, for it excludes coverage only in the case of an employee 'engaged in the employment, * * * of the insured * * * if benefits therefor are either payable or required to be provided under any workmen's compensation law; or to any obligations for which the insured or any company as his insurer may be held liable under any workmen's compensation law.'

To hold that the exclusion clause was intended to deny coverage to an additional insured who did not and could not carry workmen's compensation insurance to protect himself against an accident such as occurred here, would seem to be contrary to what actually was intended. Greaves was entitled in his own right to coverage as an additional insured. We do not think it was intended that in the event of an injury to another he was to have no protection merely because the injured party was employed by another insured who carried workmen's compensation insurance or was required to do so.

Moreover, it would seem that construing the clause as excluding coverage to an additional insured even though the injured party was not his employee, but only an employee of the named insured, would be contra to the holding in Morgan v. Greater N. Y. Taxpayers Mut. Ins. Ass'n, 305 N.Y. 243, 112 N.E.2d 273. There, as here, all the insureds were included in the definition of the word 'Assured'. Despite that fact, it was held that the individual insureds must be considered as being separately covered by the policy. The Court of Appeals there said (305 N.Y. at page 249, 112 N.E.2d at page 275):

'The proper view of the policy under consideration is that by it the defendant has undertaken separate and distinct obligations to the various assureds, named and additional, * * *.'

We think the doctrine of separability stated in that case is applicable here where the injured person is an employee of the named insured but not an employee of the additional insured. In principle there is no essential difference between this and the Morgan case. Defendant, as did the court below in its opinion, relies upon Standard Sur. & Cas. Co. v. Maryland Cas. Co., 281 App.Div. 446, 119 N.Y.S.2d 795. In that case an exclusion clause similar to the one before us was held to apply to an additional insured. The Standard case (Fourth Department) was decided on March 4, 1953. Leave to appeal to the Court of Appeals was granted (281 App.Div. 1069, 121 N.Y.S.2d 767) but...