Interstate Motor Freight System v. Michigan Mut. Liability Co.

• Decision Date: 18 March 1982
• Citation: 448 N.Y.S.2d 884,87 A.D.2d 715
• Parties: INTERSTATE MOTOR FREIGHT SYSTEM, Respondent, v. MICHIGAN MUTUAL LIABILITY COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 884

448 N.Y.S.2d 884

87 A.D.2d 715

INTERSTATE MOTOR FREIGHT SYSTEM, Respondent, v. MICHIGAN MUTUAL LIABILITY COMPANY, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 18, 1982.

Sugarman, Wallace, Manheim & Schoenwald, Syracuse (Donald L. Schoenwald, Syracuse, of counsel), for appellant.

Hinman, Howard & Kattell, Binghamton (John S. Davidge, Binghamton, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered August 13, 1980 in Broome County, which granted plaintiff's motion for summary judgment.

A written lease for a truck and trailer was executed between one Wiltse and Sullivan Motor Lines, Inc. (Sullivan). As a result, Sullivan became the "statutory owner" of Wiltse's tractor trailer (Vehicle and Traffic Law, § 128). Wiltse became a driver employed by Sullivan, and also its agent authorized to execute "trip leases" with other shippers to ensure full use of the vehicle. An accident occurred in January, 1976, while Wiltse was operating the vehicle under a trip lease he executed on behalf of Sullivan with plaintiff to transport a load of steel for plaintiff. In an action by occupants of the other vehicle, judgment was entered for $280,000 against plaintiff, Wiltse and Sullivan. Plaintiff was granted judgment upon its cross claim against Sullivan and Wiltse for the same amount. Of the amount due, $200,000 was paid on behalf of Wiltse, and plaintiff paid $25,000, leaving $55,000 plus interests and costs yet to be paid. This court affirmed that judgment (Slocum v. Wiltse, 75 A.D.2d 679, 426 N.Y.S.2d 881, mot. for lv. to app. den. 51 N.Y.2d 702, 431 N.Y.S.2d 1030, 410 N.E.2d 1237). Plaintiff commenced this action to recover $80,000 ($25,000 it had paid and $55,000 still due) from defendant (Sullivan's insurer). Special Term granted plaintiff summary judgment and defendant has appealed.

The issue raised by defendant is Special Term's interpretation of the following endorsement in defendant's insurance policy issued to Sullivan:

It is agreed that such insurance as is afforded by the policy applies with respect to any * * * hired automobile * * * subject to the following additional provisions:

* * *

* * *

3. Excess Insurance. With respect to (1) any automobile of the commercial type while leased or loaned to any person or organization, other than the named insured * * * the insurance under this endorsement shall be excess over any other valid and collectible insurance, whether primary, excess or contingent, available to the insured. Otherwise the insurance under this endorsement is primary insurance.

Defendant, relying upon Federal Ins. Co. v. Atlantic Nat. Ins. Co., 25 N.Y.2d 71, 302 N.Y.S.2d 769, 250 N.E.2d 193, argues that its policy is for excess coverage only, over any other insurance available to plaintiff. However, that case is clearly distinguishable, in that the Court of Appeals found that there were two policies at issue, both containing exactly the same clauses, i.e., both sought to preclude primary coverage and each contended to be for excess coverage only (id. at 75, 302 N.Y.S.2d 769, 250 N.E.2d 193). Defendant urges that, at minimum, Special Term should have had the two insurance policies before it in order to make a thorough analysis (see Federal Ins. Co. v. Atlantic Nat. Ins. Co., supra), and that the absence of plaintiff's policy from the moving papers precluded summary judgment. We d...