Standard Sur. & Cas. Co. v. Maryland Cas. Co.
| Decision Date | 07 September 1950 |
| Citation | 199 Misc. 658 |
| Parties | Standard Surety and Casualty Company of New York, Plaintiff,<BR>v.<BR>Maryland Casualty Company et al., Defendants. |
| Court | New York Supreme Court |
Morris Berman for plaintiff.
Sidney B. Coulter for Maryland Casualty Company and another, defendants.
Ringwood & Pasqua for Dan-Bar Contracting Company, Inc., defendants.
Richard N. Ames for Rupert L. Weedon, defendant.
The plaintiff brings this action seeking a declaratory judgment. The case has been submitted upon facts stipulated in writing by the attorneys for the respective parties.
On August 7, 1946, the defendant, Fred Carpenter, doing business under the assumed name and style of Carpenter Trucking Company (hereinafter referred to as Carpenter) was the owner of a Chevrolet truck and trailer.
On this date the defendant, Dan-Bar Contracting Company, Inc. (hereinafter called Dan-Bar) employed Carpenter to transport a power shovel owned by Dan-Bar by means of the Chevrolet truck and trailer owned by Carpenter. The defendant, Weedon, an employee of Carpenter, drove the truck with Dan-Bar's shovel on the trailer to the premises of the latter where he stopped the truck and placed skids down which the shovel was to be driven.
Weedon took a position at the side of the trailer and the defendant, Polmanteer, an employee of Dan-Bar, then commenced to unload the shovel. He started the motor on the shovel, raised the shovel bucket from the rear end of the trailer and started to swing the boom and shovel bucket around so that the boom would be at right angles to the length of the trailer when the shovel was being driven down the skids. In the course of this operation the shovel bucket dropped and struck Weedon, causing severe bodily injuries.
The present litigation results from certain policies of insurance carried by Carpenter and Dan-Bar. Prior to the date of the accident the plaintiff, Standard Surety and Casualty Company of New York, (hereinafter referred to as Standard) had issued to Dan-Bar a public liability policy indemnifying the insured, among other things, for liability arising out of the operations of Dan-Bar.
The policy defined the word "insured" as follows: "The unqualified word `Insured' wherever used includes not only the Named Insured but also any partner, executive officer, director, or stockholder thereof, but only for his liability as such."
Among the conditions of the policy the following is contained in paragraph 13:
Prior to the date of the accident the defendant, Maryland Casualty Company (hereinafter called Maryland) had issued to Carpenter an insurance policy covering the Chevrolet truck and trailer under the terms of which Maryland extended coverage to Carpenter, as the named insured therein, and agreed to defend Carpenter and pay all claims for personal injury and/or property damage for each accident involving the truck and trailer up to $25,000 for bodily injury to each person and $50,000 for each accident.
The policy contained certain provisions, among others, which appear to have a bearing upon the issues before the court.
Under the heading of "Insuring Agreements" paragraph I A, II(a) and a portion of IV provided as follows:
.
Under the heading of "Exclusions" it was provided as follows: "This policy does not apply: * * * (d) under Coverage A, to bodily injury to or death of any employee of the insured while engaged in the business, other than domestic employment, of the insured, or while engaged in the operation, maintenance or repair of any automobile; or to any obligation for which the insured may be held liable under any workmen's compensation law."
Under the heading "CONDITIONS" paragraph 4 defined the purposes of use and subdivision (c) thereof provided that "Use of the automobile for the purposes stated includes the loading and unloading thereof."
On January 10, 1947, Weedon commenced an action in this court against Dan-Bar to recover damages for injuries alleged to have been sustained by him as a result of being struck by the power shovel and arising out of the claimed negligence of Dan-Bar's employee, Polmanteer. Subsequently Dan-Bar brought in Polmanteer as a third-party defendant and sought to recover from Polmanteer the amount of any judgment which Weedon might recover against Dan-Bar. Polmanteer did not appear or answer.
Subsequent to the commencement of the action by Weedon, Standard and Dan-Bar requested Maryland to assume the defense of Dan-Bar in the Weedon action and to pay the judgment, if any, obtained by Weedon against Dan-Bar. Maryland refused to do so.
On December 6, 1948, and subsequent to the institution of this action Standard obtained a settlement and discontinuance of the Weedon action against Dan-Bar by paying to Weedon under Standard's policy the sum of $6,250. This payment was made with the knowledge of Maryland.
The parties have stipulated that at the time of the accident Dan-Bar and Polmanteer were using the truck and trailer with the consent and permission of the owner Carpenter in unloading the power shovel.
A motion had previously been made in this action by Standard to strike out certain defenses in the answer of Maryland. The latter had also moved for summary judgment dismissing the complaint. These motions have been abandoned and the action submitted for decision upon the stipulated facts.
It is the claim of Standard that it is entitled to a declaration that...
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