Loerzel v. AM. FID. FIRE INS. CO.

• Decision Date: 30 December 1952
• Citation: 204 Misc. 115
• Court: New York Supreme Court
• Parties: William Loerzel, Plaintiff,<BR>v.<BR>American Fidelity Fire Insurance Company, Defendant.

204 Misc. 115

William Loerzel, Plaintiff,

v.American Fidelity Fire Insurance Company, Defendant.

December 30, 1952.

N. Le Van Haver for plaintiff.

David Tepp for defendant.

MacAFFER, J.

The plaintiff moves for an order of this court striking out the answer and the affirmative defense of the defendant and for summary judgment for the sum of $20,000 and interest.

The plaintiff heretofore recovered a judgment in the sum of $75,000 plus interest and costs against Ralph Truesdale, Robert W. Truesdale, Oswego Stevedoring and Trucking Co., Inc., Evelyn Carnright and Richard Carnright. Two trucks owned by the Oswego Stevedoring and Trucking Co., Inc., one in charge of Ralph Truesdale and the other in charge of Robert W. Truesdale, both employees of the said corporation, were standing on the highway, one immediately to the rear of the other, when an automobile in which the plaintiff was riding as a passenger, operated by Evelyn Carnright and owned by Richard Carnright, collided with the rear truck of the said corporation and the plaintiff received injuries which were the subject of the suit against all of the aforesaid parties. Following the entry of the judgment an appeal was taken to the Appellate Division of this court, which court unanimously affirmed the judgment and thereafter leave to appeal to the Court of Appeals was denied. (Loerzel v. Carnright, 279 App. Div. 825, motion for leave to appeal denied 303 N.Y. 1014.) The insurance carrier which insured the Carnright car paid to the plaintiff $5,000, thereby reducing the amount due on the judgment to $70,000 plus costs and interest. Thereafter this action was commenced by the plaintiff against the above-named defendant, the insurance company, with which the aforesaid corporation had a policy of liability insurance covering the trucks involved in the accident and covering the employees in charge thereof. Subsequent to the commencement of this action the defendant paid to the plaintiff $55,027.58, which was in payment of costs and interest amounting to $5,027.58 and $50,000 on account of the judgment, which amount the defendant insurance company claims to be the limit which it is obliged to pay under the terms of its policy issued to the aforesaid corporation. There remains, therefore, unpaid on the judgment the sum of $20,000, with interest from the 20th day of October, 1950.

The plaintiff has elected, pursuant to the provisions of subdivision 7 of section 167 of the Insurance Law, to institute this action directly against the insurance carrier insuring the trucking corporation.

The plaintiff in this action seeks to recover on the theory that the defendant is liable for the balance due on the judgment, to wit, the sum of $20,000. The defendant defends on the theory that it has paid the full amount to which it became liable to pay pursuant to the terms of the policy and that therefore it is not liable for any additional amount which may be due on the judgment. The policy of insurance as amended and in effect at the time of the accident provides that the limit of liability of the defendant shall be $50,000 for each person and $200,000 for each accident. The plaintiff in support of his contention refers to the provisions of the policy and particularly to paragraph "IV (c)" under the title "Insuring Agreements" reading as follows: "IV (c) Two or more automobiles. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but a motor vehicle and a trailer or trailers attached thereto shall be held to be one automobile as respects limits of liability" and further, with respect to the coverage of persons legally using the vehicles covered by the policy, refers to paragraph "III" under the title "Insuring...