Opinion
Argued February 9, 1977
Decided April 7, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, A. FRANKLIN MAHONEY, J.
Clayton T. Bardwell for appellant.
Myron Komar for respondents.
MEMORANDUM. Whether the claim is within the coverage of either policy cannot, in this instance, be determined prior to the trial and appeals, if any, of the underlying personal injury action (see Post v Metropolitan Cas. Ins. Co., 227 App. Div. 156, affd 254 N.Y. 541; see, also, Nationwide Mut. Ins. Co. v Dennis, 14 A.D.2d 188; Everlast Sporting Goods Mfg. Co. v Aetna Ins. Co., 23 A.D.2d 641). Each insurer argues that, based on the allegations in the complaint, the other is liable to pay any judgment rendered against the insured. On the other hand, based on the exclusions in each policy, an argument may be made that the occurrence is not within the coverage of either policy. Each policy, however, has a clause that requires the insurer to defend based on the allegation of an occurrence within the coverage, and it is well established that the duty to defend is much broader than the duty to pay (see, e.g., Sturgis Mfg. Co. v Utica Mut. Ins. Co., 37 N.Y.2d 69, 72; International Paper Co. v Continental Cas. Co., 35 N.Y.2d 322, 326; Goldberg v Lumber Mut. Cas. Ins. Co. of N.Y., 297 N.Y. 148, 154). It is, therefore, appropriate in this case to hold that both insurers are obligated to provide a defense to the insured with respect to this suit. The question of whether the occurrence is within risks covered under either policy should be resolved based on the facts as determined in the underlying action. At such later time, any questions concerning waiver or estoppel should also be determined. Accordingly, the order of the Appellate Division should be modified, without costs, and judgment should be directed to be entered declaring that both insurers are obligated to provide a defense to the insured but that the liability to pay any judgment is to be determined after the trial and appeals, if any, of the underlying personal injury action.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.