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Axton Cross Co. v. Lumbermens Mutual Casualty Co.

Appellate Division of the Supreme Court of New York, First Department
Oct 3, 1991
176 A.D.2d 482 (N.Y. App. Div. 1991)

Opinion

October 3, 1991

Appeal from the Supreme Court, New York County (Diane A. Lebedeff, J.).


Defendant is not relieved of its obligation to defend plaintiff in the underlying action on the ground that the complaint and original bill of particulars did not allege that the accident occurred while the drum of hydrofluoric acid was actually being off-loaded from plaintiff's truck. Liberally, read, the complaint and original bill of particulars insofar as they claim that the leak in the drum was caused by negligence in its "packaging and shipping", contain allegations potentially within the coverage of the policy. This is because coverage embraces any negligence in the process of loading and unloading, it being irrelevant that the injuries were sustained at a time and place far removed from that process (Utica Mut. Ins. Co. v. Prudential Prop. Cas. Ins. Co., 64 N.Y.2d 1049, 1051). If the claim, liberally construed, is within the embrace of the policy, the insurer must defend. (Ruder Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 670.)

Concur — Milonas, J.P., Ellerin, Asch and Rubin, JJ.


Summaries of

Axton Cross Co. v. Lumbermens Mutual Casualty Co.

Appellate Division of the Supreme Court of New York, First Department
Oct 3, 1991
176 A.D.2d 482 (N.Y. App. Div. 1991)
Case details for

Axton Cross Co. v. Lumbermens Mutual Casualty Co.

Case Details

Full title:AXTON CROSS COMPANY, INC., Respondent, v. LUMBERMENS MUTUAL CASUALTY…

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

Date published: Oct 3, 1991

Citations

176 A.D.2d 482 (N.Y. App. Div. 1991)
574 N.Y.S.2d 561

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