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Allstate Insurance Company v. Pestar

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 21, 1990
168 A.D.2d 931 (N.Y. App. Div. 1990)

Summary

holding insurer had duty to indemnify parents against state's contribution claim for child's injury, since issue concerned potential liability to the state, not the child

Summary of this case from Turchio v. Foremost Ins. Co.

Opinion

December 21, 1990

Appeal from the Supreme Court, Onondaga County, Miller, J.

Present — Callahan, J.P., Denman, Green, Balio and Davis, JJ.


Order unanimously reversed on the law with costs, motion denied, cross motion granted and judgment declared, in accordance with the following memorandum: Rachel Pestar, an infant, was seriously injured when she dove from a tree stump into a lake owned and maintained by the State. Her parents filed a claim against the State in her behalf and alleged that the State was negligent in permitting swimming and diving in the area, in failing to remove the tree stumps and in not warning of the alleged dangerous condition. The State interposed a counterclaim against the parents seeking contribution on the ground that Rachel's injuries were caused "in whole or in part by the negligent supervision, negligent encouragement, negligent representations and/or culpable conduct" of her parents. The parents requested that Allstate Insurance Company defend them and pay any judgment against them on the counterclaim under their homeowner's policy.

Supreme Court erred in granting Allstate's motion for summary judgment and in denying defendants' cross motion for summary judgment. Although the policy specifically excludes coverage for bodily injuries sustained by an insured person, such as Rachel, the liability at issue on the State's counterclaim is not the parents' liability to Rachel but rather the parents' potential liability to the State on a claim of equitable apportionment. Accordingly, we declare that Allstate has a duty to defend and indemnify the parents with respect to the State's counterclaim (see, Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. Co., 45 N.Y.2d 551, 557; Iamele v. Nationwide Mut. Ins. Co., 103 A.D.2d 1027). We have considered the parents' remaining argument regarding the alleged untimeliness of the disclaimer and find it without merit.


Summaries of

Allstate Insurance Company v. Pestar

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 21, 1990
168 A.D.2d 931 (N.Y. App. Div. 1990)

holding insurer had duty to indemnify parents against state's contribution claim for child's injury, since issue concerned potential liability to the state, not the child

Summary of this case from Turchio v. Foremost Ins. Co.

In Pestar, a child was injured when she dove into a State-owned lake. Her parents filed a negligence action against the State and the State counterclaimed seeking contribution.

Summary of this case from Cragg v. Allstate Indemnity Corporation

In Pestar, the New York appellate court noted that "[a]lthough the [homeowner's] policy specifically excludes coverage for bodily injuries sustained by an injured person,... the liability at issue on the [third party's] counterclaim is not the parents' liability to [their daughter] but rather the parents' potential liability to the [third party] on a claim of equitable apportionment."

Summary of this case from Salviejo v. State Farm Fire and Cas. Co.
Case details for

Allstate Insurance Company v. Pestar

Case Details

Full title:ALLSTATE INSURANCE COMPANY, Respondent, v. ALBERT A. PESTAR et al.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 21, 1990

Citations

168 A.D.2d 931 (N.Y. App. Div. 1990)
564 N.Y.S.2d 892

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Cragg v. Allstate Indemnity Corporation

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Turchio v. Foremost Ins. Co.

New York courts have refused to interpret similar insurance exclusion provisions to encompass third-party…