Public Service Mut. Ins. Co. v. Slating

• Decision Date: 08 January 1982
• Citation: 448 N.Y.S.2d 349,113 Misc.2d 172
• Parties: PUBLIC SERVICE MUTUAL INSURANCE COMPANY, Plaintiff, v. Alice SLATING, Stephen Blidy and Kenneth Lawton, Defendants.
• Court: New York Supreme Court

Page 349

448 N.Y.S.2d 349

113 Misc.2d 172

PUBLIC SERVICE MUTUAL INSURANCE COMPANY, Plaintiff, v. Alice SLATING, Stephen Blidy and Kenneth Lawton, Defendants.

Supreme Court, Erie County.

Jan. 8, 1982.

Dixon & DeMarie, P. C., Buffalo, for plaintiff.

Richard J. Rosche, Lancaster, for defendant Slating.

Rauch & Vella, Springville, for defendant Lawton.

MEMORANDUM

NORMAN J. WOLF, Jr. Justice.

Defendant Slating has moved this Court pursuant to CPLR 3212 for summary judgment together with costs and disbursements upon the grounds that there are no triable issues of fact and there is no merit to the causes of action in the complaint. Plaintiff opposes defendant Slating's motion and requests summary judgment in favor of the plaintiff and against the defendants. Defendant Lawton joins in the request that the Court review the basic automobile insurance policy and determine whether or not Public Service Mutual Insurance Company has an obligation to defend him in the lawsuit instituted by the defendant Slating. Defendant Blidy did not appear.

This action arises out of an accident wherein it is alleged that defendant Alice Slating was injured when the motorcycle she was operating was struck by another motorcycle owned by Larry Snyder and operated by Hilda Snyder. Ms. Snyder was operating that motorcycle with a learner's permit. Slating claims that the accident was also caused by the negligence of the defendants Blidy and Lawton within the use and operation of their motor vehicles through their negligent supervision of Hilda Snyder. The plaintiff herein issued basic automobile liability policies to defendants Blidy and Lawton and now alleges that the damage allegedly caused to defendant Slating did not occur and was not caused by an occurrence arising out of the ownership, maintenance or use of the insured vehicles.

The policy of insurance issued to Blidy and Lawton provides, inter alia, that plaintiff will have the duty to defend any lawsuit against the insured seeking damages because of bodily injury "caused by an occurrence and arising out of the ownership, maintenance or use ... of an owned automobile."

The duty of an insurance company to defend is a broad one. The Fourth Department has recognized that "If the insurer is to be relieved of its duty to defend, it must show that the allegations rest solely and entirely within the exclusions of the policy and that the allegations are subject to no other interpretation." (United States Fid. and Guar. Co. v....