R.H. Macy & Co. v. General Acc., Fire & Life Assur. Corp.
| Decision Date | 16 December 1955 |
| Citation | 4 Misc.2d 89,148 N.Y.S.2d 10 |
| Parties | R. H. MACY & CO., Inc., v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORP. |
| Court | New York Supreme Court |
Barrett, Molloy, Geoghan & Swiggett, New York City, for plaintiff.
Richards W. Hannah, New York City, for defendant.
Judgment is here sought declaring plaintiff, R. H. Macy & Company, Inc., to be an 'insured' under the liability policy of defendant General Accident Company entitling plaintiff to defense and coverage in an action brought against it by one Curry. The controversy is essentially between two insurance companies, that is, between plaintiff's own liability insurance carrier, Zurich General Accident & Liability Insurance Company, and the defendant.
The facts briefly are as follows: Television sets were being unloaded at Macy's warehouse from a truck owned by S. & K. Trucking. When the accident occurred the truck was backed onto a platform at the warehouse. Curry, an employee of the seller of the merchandise, was injured while working alongside the driver of the truck employed by S. & K. Trucking. Skids were being supplied by Macy's employees. One of them, a defective skid, was at or near the truck along with other skids upon which the television sets were being loaded. While engaged in the unloading operation Curry was standing upon that defective skid, as yet unused, and momentarily stepped off it. When the did so the defect therein caused him to fall.
The accident occurred on December 15, 1950. Curry commenced action against Macy on December 12, 1951, and on December 13, 1951, Macy interposed an answer through attorneys for Zurich, its own carrier. On that very day, December 13, 1951, an attorney for Macy and Zurich made the following notation in his own handwriting upon the complaint: Thereafter and about every three months the file was reviewed by the attorneys for Macy. Finally, on December 15, 1953, a representative of Zurich wrote a memo in which he called attention to the fact that 'in spite of the attorney's memorandum of December 13, 1951, nothing had been done to ascertain the carrier of the truck involved and to seek protection under that policy.' On December 24, 1953, Macy and Zurich, through their attorneys, made the initial demand that General defend the action and cover the risk.
I find it to be the fact that the truck involved in the delivery at the scene of the accident was insured by General upon a policy it issued to S. & K. Trucking. The coverage extends to anyone using or legally responsible for the use of the truck, provided such use is with the permission of the named insured. The evidence clearly established that the truck was used with permission of S. & K. Trucking, the named insured. Control of the vehicle would be basic to a finding of legal responsibility for its use. It may be argued that Macy had no such control and consequently could not be said to have been legally responsible for such use. But the policy also supplies protection to a user of the vehicle and there can be no question that at its warehouse for the purpose of receiving the television sets Macy made use of the truck. The contention that the policy was not intended to cover Macy's negligence in furnishing a defective skid overlooks the fact that the skid was then factually utilized to facilitate the unloading operation.
Our courts favor broad construction of the omnibus clause in policies as to loading and unloading in commercial pick-ups and deliveries. They have interpreted them as covering the complete operation, extending even to accidents involving the transported goods or relating to occurrences away from the truck during the unloading process. Wagman v. American Fidelity & Cas. Co., 304 N.Y. 490, 109 N.E.2d 592; Lowry v. R. H. Macy, Sup., 119 N.Y.S.2d 5. In the light of such broad construction and the concept that such omnibus coverage extends...
To continue reading
Request your trial
-
Navigazione Alta Italia v. Columbia Casualty Company
...Pa. 141, 13 A.2d 46; Dixon v. United States Fidelity & Guaranty Co., Mo.App., 155 S.W.2d 313; R. H. Macy & Co. v. General Accident, Fire & Life Assurance Corp., 4 Misc.2d 89, 148 N.Y.S.2d 10, and Pitts v. Aetna Casualty & Surety Co., 2 Cir., 218 F.2d 58, certiorari denied 348 U.S. 973, 75 S......
-
National Surety Corporation v. Wells
...13 A.2d 46; Dixon v. United States Fidelity & Guaranty Co., Mo.App., 1949, 155 S.W.2d 313; R. H. Macy & Co. v. General Accident, Fire & Life Assurance Corp., 1955, 4 Misc.2d 89, 148 N.Y.S.2d 10, and Pitts v. Aetna Casualty & Surety Co., 2 Cir., 1954, 218 F.2d 58, certiorari denied 348 U.S. ......
-
EMPLOYERS'LIABILITY ASSUR. CORP. v. Indemnity Ins. Co.
...unloading and the accident. Similarly, coverage was found to be present in the following cases: R. H. Macy & Co. v. General Accident Fire & L. Assur. Corp., 4 Misc.2d 89, 148 N.Y.S.2d 10 (1955), where an employee of the seller of merchandise was injured by a defective skid used to remove te......
-
Fidelity & Cas. Co. of New York v. Maryland Cas. Co.
...or recovery under the provisions of Maryland's policy by reason of the accident in question. In Macy & Co. v. General Acc. Fire and Life Assur. Corp., 4 Misc.2d 89, 148 N.Y.S.2d 10, plaintiff brought an action for judgment declaring plaintiff an 'insured' under the liability policy of defen......