Neice v. Nationwide Mut. Ins. Co.

• Decision Date: 21 December 1978
• Parties: Frank NEICE and Allstate Insurance Company, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Robert Maben and Crockett Hoyt, Defendants.
• Court: New York Supreme Court

Page 799

419 N.Y.S.2d 799

100 Misc.2d 595

Frank NEICE and Allstate Insurance Company, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Robert Maben and Crockett Hoyt, Defendants.

Supreme Court, Special Term, Broome County.

Dec. 21, 1978.

Night, Keller, O'Connor, Relihan & Blechman, Binghamton (Walter J. Relihan, Jr., Binghamton, of counsel), for plaintiffs.

Chernin & Gold, Binghamton (Donald M. Flanagan, Binghamton, of counsel), for defendant Nationwide Mut. Ins. Co.

RICHARD F. KUHNEN, Justice Presiding.

This is a motion for summary judgment in an action for a declaratory judgment to fix the rights of the parties under policies of insurance issued by plaintiff Allstate and defendant Nationwide as they relate to a personal injury action now pending between Crockett Hoyt as plaintiff and Frank Neice as defendant.

The facts are evidently in some dispute, but for the purposes of this motion the following would seem to be a fairly accurate picture of what transpired.

On November 5, 1977 Frank Neice was driving a Rambler sedan towing a camper trailer on a steep road in Greene County, headed for a small airport operated by his nephew, defendant Robert Maben. When his wheels started to spin on the wet pavement, he unhitched the trailer and maneuvered it to the opposite side of the road, pointing downhill. His wife, in the meantime, drove off with the Rambler, returned, and parked it 50 or 60 feet ahead of the trailer on the downhill side. His niece, Nancy Maben, then appeared, offered to help and came back with her father's jeep, a GMC Jimmy, and positioned the jeep close to the tongue of the trailer. Hoyt and Barber, who evidently were in the company of Nancy Maben, took part in assisting. With Neice and Barber on opposite sides of the tongue, Hoyt picked it up to attach it to the jeep, or Neice started to elevate it, when it came forward, crushing Hoyt's hand between the tongue and some part of the jeep.

Allstate insures the Rambler and trailer, Nationwide the GMC Jimmy.

The action by Hoyt in Greene County against Neice claims that the accident was due entirely to the negligence of Neice in operating the trailer so as to permit it to roll uncontrolled.

Neice is the named insured in the Allstate policy, Maben in the Nationwide. Concededly, the respective policies also include Mrs. Neice and Nancy Maben as "entitled to protection" by reason of their use with permission of the policyholder.

Allstate is presently defending Neice in the negligence action on the theory that Neice may have been "using" his vehicle, which included the trailer, within the terms of the policy, even though the trailer was detached at the time of the accident.

Allstate, however, takes the position that Neice was also "using" the Maben jeep within the meaning of the Nationwide policy and is entitled therefore to protection under it as an additional insured. It also says that the Nationwide policy is either "primary" in the sense that the insurance provided by that policy must be exhausted before calling upon Allstate, or that the two share equally, or pro rata in accordance with the respective limits of liability and it requests the court to rule also on this question.

The position of Nationwide is that Neice acquired no coverage under its policy because, prior to the actual attachment of the trailer to the Maben jeep, which was never consummated, he was not "using" the trailer within the coverage provisions of its policy which state:

". . . (liability) shall also apply to any trailer designed for use with a private passenger automobile, if not being used with a different type automobile for business purposes, while such trailer is owned, hired or borrowed by, or furnished for regular use to, any person entitled to protection, and used by the Policyholder or his spouse residing in the same household, or with the permission of either."

Neice was not a "person entitled to protection", it is argued, until the trailer became attached to the Nationwide insured Maben jeep; that he did not become "legally responsible" for the "use" of the Maben jeep until that time and therefore did not qualify under Coverage C(2) which extends protection to

"any person or organization legally responsible for the use of the described automobile, provided the actual use was with the permission of the Policyholder or his spouse."

Nationwide also argues that Neice was covered by his Allstate policy under the standard "unloading and loading" provisions from the time he "unloaded" the trailer until such time as he "loaded" it, that is, attached it to another motor vehicle as intended.

Counsel for Nationwide makes the statement in one of its memoranda that "The plaintiffs in this action contend that the Allstate coverage ceased upon the arrival of Nancy Maben and the GMC Jimmy which was insured by the Nationwide Century Automobile Policy which was issued to Robert Maben". We do not understand that to be plaintiffs' contention, but rather that plaintiffs'...