Summary
declining to grant summary judgment where a question of fact remained about whether the injury arose from activity covered by the policy's liability exclusions
Summary of this case from Wausau Underwriters Ins. Co. v. Old Republic Gen. Ins. Co.Opinion
April 14, 1993
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Callahan, J.P., Green, Fallon, Boomer and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed with costs to plaintiff and judgment granted in accordance with the following Memorandum: Defendant failed to meet its burden of demonstrating that the allegations of the personal injury complaint fall solely and entirely within the policy exclusion of liability arising out of the ownership, maintenance or use of motor vehicles owned or operated by an insured (see, Servidone Constr. Corp. v Security Ins. Co., 64 N.Y.2d 419, 425). Because the facts alleged raise a reasonable possibility that plaintiff may be held liable for an act or omission covered by the policy, defendant is obligated to provide a defense (see, Meyers Sons Corp. v Zurich Am. Ins. Group, 74 N.Y.2d 298, 302; Ruder Finn v Seaboard Sur. Co., 52 N.Y.2d 663, 669-670).
Defendant's duty to defend is broader than its duty to indemnify (see, Fitzpatrick v American Honda Motor Co., 78 N.Y.2d 61, 65; Ruder Finn v Seaboard Sur. Co., supra, at 669-670). "[W]here complaints allege alternative theories upon which ultimate liability may be based, questions of indemnification should usually be determined in the underlying lawsuits, not in a declaratory judgment action" (Aetna Cas. Sur. Co. v Liberty Mut. Ins. Co., 91 A.D.2d 317, 323-324). Given the alternative theories alleged in the personal injury complaint, a declaration with respect to defendant's obligation to pay a judgment rendered against plaintiff would be premature.
We modify the judgment, therefore, by denying defendant's cross motion for summary judgment, reinstating the complaint, granting in part plaintiff's motion for summary judgment and declaring that defendant has a duty to defend plaintiff in the underlying personal injury action.