Hertz Corp. v. Dahill Moving and Storage Co., Inc.

• Decision Date: 30 December 1980
• Citation: 79 A.D.2d 589,434 N.Y.S.2d 386
• Parties: The HERTZ CORPORATION, Plaintiff-Respondent, v. DAHILL MOVING AND STORAGE CO., INC., Defendant-Appellant. DAHILL MOVING AND STORAGE CO., INC., Third-Party Plaintiff-Respondent, v. W. M. ROSS AND CO., INC., Third-Party Defendant-Appellant, and North River Insurance Company et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 386

434 N.Y.S.2d 386

79 A.D.2d 589

The HERTZ CORPORATION, Plaintiff-Respondent, v. DAHILL MOVING AND STORAGE CO., INC., Defendant-Appellant.

DAHILL MOVING AND STORAGE CO., INC., Third-Party Plaintiff-Respondent, v. W. M. ROSS AND CO., INC., Third-Party Defendant-Appellant, and North River Insurance Company et al., Third-Party

Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 30, 1980.

P. Hoffer, New York City, for plaintiff-respondent.

R. A. Levy, New York City, for Dahill Moving and Storage Co., Inc.

S. B. Prystowsky, New York City, for third-party defendant-appellant.

G. F. Sacco, New York City, for third-party defendants-respondents.

Before SULLIVAN, J. P., and MARKEWICH, BLOOM, LYNCH and CARRO, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County, entered August 23, 1979, granting plaintiff's motion for summary judgment and denying the motion of defendant which, inter alia sought a declaration that the insurance policy carried by defendant with third party defendant North River Insurance Company covered defendant's liability to plaintiff; and which denied the motion of third party defendant W. M. Ross & Co., Inc., for summary judgment, modified on the law to the extent of reversing the denial of defendant's motion and granting a declaration that the policy issued to Dahill Moving and Storage Co., Inc., by North River Insurance Company covers Dahill's liability to Hertz; granting the motion of W. C. Ross & Co., Inc., for summary judgment, and otherwise affirmed, without costs.

Hertz leased a truck to Dahill. Under the terms of the lease, Hertz agreed to cover the lessee for bodily injury liability in the sum of $10,000. Dahill carried additional bodily injury liability insurance with North River. On April 3, 1975, a traffic accident occurred as a result of which Francisco Estudillo, a pedestrian, was killed. Action was brought against Hertz, Dahill and the operator of the vehicle. In November, 1977, that action was settled for the sum of $65,000, with Hertz paying the full amount of the settlement. Dahill was represented at the settlement by its own counsel. The stipulation which marked the settlement, reserved to Hertz the right to proceed against Dahill for the amount by which the settlement exceeded the coverage provided by Hertz to Dahill.

Thereafter, Hertz commenced this action seeking indemnity from Dahill of the excess over its liability under the policy issued by it. That action was based upon the theory that Hertz' liability was derivative under § 388 of the Vehicle and Traffic Law while Dahill was the party actually at fault. Dahill then brought a third party action against North River, its insurer; Ross, North River's agent; and Crum and Forster Insurance Companies, the parent of North...