Kings County Trust Co. v. Tudor Const. Corp.
| Decision Date | 05 July 1967 |
| Parties | KINGS COUNTY TRUST COMPANY, as committee, etc., Plaintiff, v. TUDOR CONSTRUCTION CORP., Defendant and Third-Party Plaintiff-Appellant; UNITED STATES FIDELITY AND GUARANTY COMPANY, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before BELDOCK, P.J., and BRENNAN, HOPKINS, MUNDER and NOLAN, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Queens County, entered December 14, 1965, reversed on the law and the facts and a new trial of the third-party action ordered, with costs to appellant to abide the event.
In this severed third-party action, the third-party plaintiff sued the third-party defendant insurance company for indemnification and to recover the costs of its defense of an action instituted by one, Joseph Aiello, to recover damages for injuries sustained by him on a construction job while unloading debris from a chute (constructed and maintained by the third-party plaintiff) onto a truck being used to cart away the debris. Part of the chute allegedly gave way and fell upon Aiello together with the debris, causing serious injuries. Aiello recovered a judgment for $150,000. The insurance policy, which insured the owner and operator of the truck, contained a loading and unloading provision. The third-party plaintiff claimed it was an insured person thereunder. The court below dismissed the third-party complaint after a nonjury trial. It reasoned that the trial court in the main action (between Aiello and the third-party plaintiff, as defendant) found that the accident was attributable solely to the third-party plaintiff's negligence in the construction and maintenance of the debris chute, and that, absent proof that the act of negligence occurred during the loading operation, there wass no coverage under the policy.
In our opinion, this was error. It is sufficient to impose coverage under the loading and unloading clause of the policy in question, if a causal relationship is established between the defective condition of the debris chute, the occurrence during the loading operation onto the truck, irrespective of when the alleged act of commission or omission, constituting negligence, occurred (cf. Bundschu v. Travelers Ins. Co., 22 A.D.2d 907, 255 N.Y.S.2d 529; Wagman v. American Fid. & Gas. Co., 304 N.Y. 490, 109 N.E.2d 592).
In view of such reliance on an erroneous interpretation of the applicable law, the court below made no factual...
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