United Services Auto. Ass'n v. Aetna Cas. & Sur. Co.

• Decision Date: 23 May 1980
• Citation: 75 A.D.2d 1022,429 N.Y.S.2d 508
• Court: New York Supreme Court — Appellate Division
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant-Respondent, v. AETNA CASUALTY & SURETY COMPANY, Respondent-Appellant, and Daniel C. Dwyer, an Infant, by James Dwyer, his f/n/g and James Dwyer, Individually, et al., Respondents.

Page 508

429 N.Y.S.2d 508

75 A.D.2d 1022

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant-Respondent, v. AETNA CASUALTY & SURETY COMPANY, Respondent-Appellant and Daniel C. Dwyer, an Infant, by James Dwyer, his f/n/g and James Dwyer, Individually, et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

May 23, 1980.

Cox, Barrell, Walsh, Roberts & Grace, Buffalo by Peter J. Murrett, III, Buffalo, for appellant-respondent.

Brown, Kelly, Turner, Hassett & Leach, Buffalo by Michael Pilarz, Buffalo, for respondent-appellant.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

MEMORANDUM:

The insured volunteered the use of her own car to transport six children including her son on a field trip from St. Rose of Lima School to the Buffalo Museum of Science. While en route, the boys were laughing and talking but there is no proof of roughhousing. At one point she heard her son say "cut it out" and she turned and told the boys to stop. One of the boys then said that another boy had been hit in the eye with a wadded up tinfoil gum wrapper used as a "spit ball". The plaintiff whose eye was injured by this incident was a 12-year-old seventh grader.

The family of the injured infant commenced suit against several defendants, including the insured. In her case, the claim is based on alleged negligent supervision and control. Thereafter, a declaratory judgment action was commenced and the plaintiff and defendant insurance carriers each moved for summary judgment, asserting that the other owed a duty to defend the insured in the negligence action. Plaintiff-appellant United Services Automobile Association (United) is the insured's automobile liability carrier, and defendant-respondent Aetna Casualty & Surety Co. (Aetna) is the insured's homeowners' liability carrier.

We reverse the order at Special Term which denied summary judgment to either party. This occurrence did not arise out of the "ownership, maintenance or use" of the motor vehicle. Not every injury occurring in or near a motor vehicle is covered by the phrase "use or operation". The accident must be connected with the use of an automobile qua automobile (Reisinger v. Allstate Ins. Co., 58 A.D.2d 1028, 397 N.Y.S.2d 52, aff'd. 44 N.Y.2d 881, 407 N.Y.S.2d 695, 379 N.E.2d 221). Where the operation or driving function of an automobile or the condition of the vehicle itself is not the proximate cause of the injury, the occurrence does not arise out of its use or operation (McConnell v. Firemen's Fund Amer. Ins. Co., 49 A.D.2d 676, 677, 370 N.Y.S.2d 730; see Brown v. Allstate Ins. Co., 69 A.D.2d 1013, 416...