Town of Newfane v. Merchants Mut. Cas. Co.

• Decision Date: 30 December 1957
• Citation: 10 Misc.2d 163,169 N.Y.S.2d 576
• Parties: TOWN OF NEWFANE, NIAGARA COUNTY, New York, and Olcott Fire Company, Inc., of Olcott, New York, Plaintiffs, v. MERCHANTS MUTUAL CASUALTY CO., of Buffalo, New York, and the Travellers Insurance Co., of Hartford, Connecticut, Defendants.
• Court: New York Supreme Court

Page 576

169 N.Y.S.2d 576

10 Misc.2d 163

TOWN OF NEWFANE, NIAGARA COUNTY, New York, and Olcott Fire

Company, Inc., of Olcott, New York, Plaintiffs, v. MERCHANTS MUTUAL CASUALTY CO., of Buffalo, New York, and the

Travellers Insurance Co., of Hartford,

Connecticut, Defendants.

Supreme Court, Niagara County.

Dec. 30, 1957.

Fogle, Andrews & Pusateri, Lockport, for plaintiffs, J. Wesley Andrews, Lockport, of counsel.

Gleason, Fitzpatrick, O'Connor & O'Brien, Buffalo, for defendant, Merchants Mut. Cas. Co.

Adams, Smith, Brown & Starrett, Buffalo, for defendant, the Travellers Ins. Co., Emil L. Cohen, Buffalo, of counsel.

GEORGE T. VANDERMEULEN, Justice.

On August 3, 1953, one Alvin Linderman, a volunteer fireman, while driving his automobile on a public highway in response to a fire alarm, struck and thereby injured one Carol P. Crosswell, an infant about ten years of age. Thereafter an action was started by Carol M. Crosswell, the guardian ad litem for said infant, and Carol M. Crosswell, individually, against Alvin Linderman and the Olcott Fire Company, Inc. and the Town of Newfane, to recover damages sustained by the plaintiffs in that action through such injuries. It was alleged in the complaint in that action that the injuries to the infant plaintiff had been caused solely through the negligent operation of the automobile by Alvin Linderman, who was at the time of the accident operating said automobile either in the discharge of his duties as a volunteer fireman of the Olcott Fire Company, Inc. (organized for the purpose of affording fire protection within the Town of Newfane), or in pursuit of his own personal business.

Linderman was at the time of the accident the named insured in a policy of insurance (No. 182775) issued by Merchants Mutual Casualty Co. wherein the latter company had, for a valuable consideration, agreed among other things to pay on behalf of 'the insured' all sums, not exceeding $20,000 with interest and costs, which 'the insured shall become legally obligated to pay' as damages because of personal injury to any person caused by Linderman's automobile; and had also agreed to defend 'the insured' against any suit alleging such injuries. The word 'insured' was defined in this policy as the named insured (Linderman) and any person or organization legally responsible for the use of the automobile 'provided the actual use of the automobile is by the named insured * * *.'

At the town of the accident, the Olcott Fire Company, Inc. and the Town of Newfane were insured against liability by the Travellers Insurance Company by a policy (No. FAS9751315) in which that company agreed, among other things, to pay the liability to which its insureds might be subjected 'over any other valid and collectible insurance available to the insured' arising out of the use of a passenger type automobile not owned by said insured.

When the Crosswell action was started against the three defendants named therein, the defendant Linderman answered through attorneys retained by the Merchants Mutual Casualty Co. His answer admitted that 'a collision occurred between the infant plaintiff and an automobile bearing New York license No. LP29-34 operated by defendant, Alvin Linderman, in discharge of his duties as a volunteer fireman.' He denied negligent operation of the automobile, and set forth in his answer an affirmative defense. The Merchants Mutual Casualty Co. refused to assume the defense of the Crosswell action on behalf of the defendants therein, the Olcott Fire Company, Inc. and the Town of Newfane which defendants thereupon interposed answers through attorneys retained by the Travellers Insurance Company.

At the trial of the Crosswell action the court determined that Linderman was at the time of the accident operating his automobile in the performance of his duties as a volunteer fireman; that the injured infant was free from contributory negligence; that Linderman was not guilty of 'willful negligence' and was therefore exempted from liability under the provisions of Section 205-b, General Municipal Law. The complaint as to willful negligence was dismissed. Linderman, however, was found guilty of ordinary negligence which caused the plaintiff's injuries. On the basis of these factual determinations, the judgment was rendered against the two defendants therein, the Olcott Fire Company, Inc. and the Town of Newfane, for $21,000 damages and $344.34 costs, or a total of $21,344.34.

No appeal was taken by the Fire Company or the Town from the judgment rendered against them in the Crosswell action.

The Town and the Fire Company before paying the Crosswell judgments started this action against the two defendant insurance companies for a determination of the respective obligations of the defendants to pay the Crosswell judgments. After service of answers by the defendants, the plaintiffs made the present motion for summary judgment. Each of the defendants also moved to dismiss the complaint on the ground that it failed to allege facts sufficient to constitute a cause of action.

The motions to dismiss the complaint are denied.

The defendant, the Merchants Mutual Casualty Co. raises the question as to the plaintiffs' moving papers being insufficient since the affidavits are made by the attorney for the plaintiffs. However, most of the facts he states are from his personal knowledge inasmuch as he personally conducted all proceedings on behalf of the plaintiffs.

See 5 Carmody-Waite, Page 148.

It becomes incumbent on the court under Rule 113, R.C.P. to grant summary judgment unless the defendants show facts sufficient to entitle them to a trial of the issues. The answering affidavits submitted on behalf of the Travellers Insurance Company do not raise any triable issues of fact requiring a trial. Its position here as disclosed by its affidavits and briefs is that it is liable under the policy which it issued to the plaintiffs for the excess of the Crosswell judgment 'over any other valid and collectible insurance available to' the plaintiffs. For all practical purposes the position of Travellers Insurance Company in this action is that the plaintiffs are entitled to the relief the...