Ruggerio v. Aetna Life & Cas. Co.
| Decision Date | 22 January 1985 |
| Citation | 107 A.D.2d 744,484 N.Y.S.2d 106 |
| Parties | Domenico RUGGERIO, et al., Appellants, v. AETNA LIFE & CASUALTY COMPANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bertram Herman, P.C., East Norwich, for appellants.
Siff & Newman, P.C., New York City (Benjamin Vinar, Thomas R. Newman and J. Robert Morris, New York City, of counsel), for respondent.
Before TITONE, J.P., and MANGANO, WEINSTEIN and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action pursuant to former section 167 (subd. 1, par. ) of the Insurance Law to recover insurance proceeds pursuant to a judgment obtained by plaintiffs against defendant's insured, based upon causes of action for negligent operation of an automobile and for negligence in the hiring of an incompetent and unlicensed employee driver and entrustment of a taxicab to him, plaintiffs appeal from a judgment of the Supreme Court, Queens County, dated September 12, 1983, which granted defendant's motion to dismiss the complaint.
Judgment affirmed, with costs.
Plaintiffs had previously obtained a judgment against defendant's insured, Veteran's Cab Co., (Veteran) Valley Stream, Inc. based on two separate causes of action. The first cause of action involved the vicarious liability of Veteran for the negligence of one of its drivers. The second cause of action involved Veteran's own negligence in failing to ascertain whether the driver was qualified and licensed to operate a taxi and in entrusting him with a taxi when he was intoxicated. At the time of the accident, the driver did not possess the requisite license to operate a taxi and his operator's license had been suspended due to a history of driving while intoxicated.
Defendant had issued a "Comprehensive General Liability" policy to Veteran which contained a standard exclusion for liability "arising out of the ownership, maintenance, operation use" of an automobile. Trial Term held that this exclusion rendered the policy inapplicable to both causes of action as "no harm to the plaintiffs until got behind the wheel of an automobile". We agree.
Although the vicarious liability of defendant's insured and its affirmative breach of a duty owed to plaintiffs are separate causes of action, it is clear that this policy was not intended to cover injuries "arising out of" automobile accidents. Defendant's insured's negligent actions in hiring an incompetent and unqualified driver and dispatching him when he was intoxicated "do no more than...
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