Hough v. U.S. Fidelity and Guar. Co.

• Decision Date: 29 April 1993
• Citation: 192 A.D.2d 1035,596 N.Y.S.2d 903
• Parties: Tami L. HOUGH, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 903

596 N.Y.S.2d 903

192 A.D.2d 1035

Tami L. HOUGH, Respondent, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 29, 1993.

Thorn & Gershon (Jeffrey J. Tymann, of counsel), Albany, for appellant.

Andrew F. Capoccia, Albany, for respondent.

Before WEISS, P.J., and YESAWICH, MAHONEY, CASEY and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Travers, J.), entered February 24 1992 in Albany County, which denied defendant's motion for summary judgment dismissing the complaint.

On April 21, 1987, plaintiff was driving a 1984 Subaru automobile in a northerly direction on State Route 9H in the Town of Claverack, Columbia County, when she was hit from behind by a Mack tractor trailer operated by James Hicks and owned by James Collingwood. As a result of the collision five children traveling in the rear of plaintiff's vehicle were ejected onto the highway, where three were struck by a southbound tractor trailer. Two of plaintiff's children were killed and 10-year-old Michael Hough suffered a right leg amputation. Plaintiff also sustained serious injuries. A personal injury action against Hicks and Collingwood resulted in a verdict of $3,500,000 for plaintiff and $7,000,000 for Michael Hough. As it turned out Collingwood, doing business as Collingwood's Garage, maintained two separate liability insurance policies with defendant that were paid for by separate premiums; a business auto policy which had a limit of liability of $750,000 and a motor vehicle garage policy (hereinafter the garage policy), which had a liability limit of $100,000 per person and $300,000 per accident. Defendant paid the limits of the business auto policy but paid nothing pursuant to the garage policy. Consequently, plaintiff commenced this action for declaratory judgment and breach of contract seeking a determination that the garage policy provided coverage for the judgment. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court denied this motion and this appeal by defendant followed.

There must be an affirmance. We have examined the issues defendant claims entitles it to judgment as a matter of law and disagree that they are dispositive of the motion. We agree with Supreme Court that questions of fact exist with respect to whether the optional bodily injury liability coverage described in the garage policy applies in this case. Specifically, Supreme Court focused on language set forth under the title "Motor Vehicle Hazard", which pertains to the coverage for a vehicle used principally in garage operations but used occasionally for other business purposes. In support of its motion for summary judgment, defendant essentially submitted only the pleadings, the two insurance policies, a brief excerpt from Hicks' trial testimony and two affidavits from defendant's attorney not based on firsthand knowledge. The only competent information concerning the function and use of the Mack tractor trailer on the day of the accident was Hicks' brief statement that, on that day, he dropped off 13 pallets of cement in Ulster County and was on his way to Connecticut at the time of the collision. Absolutely no information as to the nature of Hicks' activities on that day or the frequency or the type of use of the vehicle at the time of the accident is contained in the record. The conclusory statements of defendant's attorney are without evidentiary value ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718). For that reason, defendant's citation to two exclusions contained in the garage policy is also not determinative because, again, adopting defendant's view would necessitate the improper adoption by us of facts and conclusions not properly drawn...