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Federal Insurance v. Ryder Truck Rental, Inc.

82 N.Y.2d 909 Court N.Y. Decision date 1994-01-18 English

Contents

Majority

p. 909
[631 NE2d 115, 609 NYS2d 173]
Federal Insurance Company et al., Respondents, v Ryder Truck Rental, Inc., et al., Appellants-Respondents, and Aetna Casualty & Surety Company et al., Respondents-Appellants, and Superintendent of Insurance of the State of New York, as Liquidator of Midland Insurance Company, Respondent. (And a Third-Party Action.)
Decided January 18, 1994
p. 912
APPEARANCES OF COUNSEL
Barry, McTiernan & Moore, New York City (William E. Fay, III, of counsel), for appellants-respondents.
Leahey & Johnson, P. C., New York City (Asher Marcus and Michael Conforti of counsel), for Aetna Casualty & Surety Company, respondent-appellant.
Smith Mazure Director Wilkins Young Yagerman & Tarallo, P. C., New York City (Lewis I. Wolf of counsel), for George R. Nadramia and another, respondents-appellants.
Acito & Klein, P. C., New York City (Elinore B. Klein of counsel), for Federal Insurance Company and another, respondents.
Shayne, Dachs, Stanisci, Corker & Sauer, Mineóla (Norman H. Dachs of counsel), for the Superintendent of Insurance, respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

In this action primarily among insurers to apportion liability for a $1.75 million settlement in a personal injury action, we agree with the Appellate Division that the $1 million business auto policy issued to Mirage Enterprises provides excess coverage. Regardless of the finding below that the driver of the truck was a "special employee” of Mirage, the court correctly concluded that the vehicle was not owned, rented or used by Mirage, and thus did not trigger primary coverage under the policy. The $1 million policy issued to Ryder Truck Rental and the $500,000 policy issued to Erie Transfer Company, each providing primary coverage, apply in full to the settlement. The Appellate Division properly remitted the case to the trial court for apportionment of the remaining $250,000 among the excess insurers.

We note, moreover, that while the Appellate Division properly applied Pennsylvania Gen. Ins. Co. v Austin Powder Co. ( 68 NY2d 465 ) to bar subrogation by insurers against their own insureds in this case, we do not pass upon the applicabil

p. 913
ity of Pennsylvania Gen. to a declaratory judgment action solely for apportionment of liability among insurers.

Chief Judge Kaye and Judges Simons, Bellacosa, Levine and Ciparick concur in memorandum; Judges Titone and Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.

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