Opinion
March 9, 1978
Appeal from an order of the Supreme Court at Special Term, entered April 5, 1977 in Rensselaer County, which granted defendant's motion for summary judgment dismissing plaintiffs' action for declaratory judgment. A standard policy of insurance entitled "Workmen's Compensation and Employers' Liability Policy" issued by defendant was in effect when plaintiff Linda Hiller sustained an injury in the course of her employment. Coverage A provided for the payment of all compensation required of the employer under the Workmen's Compensation Law and, under Coverage B, the employer was also insured for damages awarded for bodily injury caused by accident or disease to an employee occurring in the course of employment. Mrs. Hiller's injury is expressly deemed an accident by the terms of the policy. In this action plaintiffs seek a declaration that defendant must pay any damages in an action by her against the employer. In view of the clear and unambiguous terms of the policy, plaintiffs cannot succeed and a declaration to that effect is plainly in order (Government Employees Ins. Co. v Kligler, 42 N.Y.2d 863). The policy in question expressly excludes liability under Coverage B where the insured employer may be liable under the provision of the Workmen's Compensation Law and plaintiffs' exclusive remedy, one which is now being pursued, must be in accordance with that law. Plaintiffs' additional argument of "waiver" by defendant is equally without merit since there was never any initial requirement that defendant act (Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 N.Y.2d 364). Order modified, on the law, without costs, by directing that a judgment be entered declaring that defendant is not required to pay any judgment that plaintiff Linda Hiller may recover against her employer, and, as so modified, affirmed. Sweeney, J.P., Kane, Staley, Jr., Larkin and Herlihy, JJ., concur.