holding an "insured's negligent actions in hiring an incompetent and unqualified driver and dispatching him when he was intoxicated do no more than provide reasons or subfactors explaining why the accident arose out of the operation of an automobile and are therefore also excluded from coverage under the [CGL] policy"Summary of this case from Ace Am. Ins. Co. v. Axiom Constr. & Design Works, LLC
January 22, 1985
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Judgment affirmed, with costs.
Plaintiffs had previously obtained a judgment against defendant's insured, Veteran's Cab Co., Valley Stream, Inc. (Veteran) based on two separate causes of action. The first cause of action involved the vicarious liability of Veteran for the negligence of one of its drivers. The second cause of action involved Veteran's own negligence in failing to ascertain whether the driver was qualified and licensed to operate a taxi and in entrusting him with a taxi when he was intoxicated. At the time of the accident, the driver did not possess the requisite license to operate a taxi and his operator's license had been suspended due to a history of driving while intoxicated.
Defendant had issued a "Comprehensive General Liability" policy to Veteran which contained a standard exclusion for liability "arising out of the ownership, maintenance, operation [or] use" of an automobile. Trial Term held that this exclusion rendered the policy inapplicable to both causes of action as "no harm [was done] to the plaintiffs until [the driver] got behind the wheel of an automobile". We agree.
Although the vicarious liability of defendant's insured and its affirmative breach of a duty owed to plaintiffs are separate causes of action, it is clear that this policy was not intended to cover injuries "arising out of" automobile accidents. Defendant's insured's negligent actions in hiring an incompetent and unqualified driver and dispatching him when he was intoxicated "do no more than provide reasons or subfactors" explaining why the accident arose out of the operation of an automobile and are therefore also excluded from coverage under the policy ( Matter of Duncan Petroleum Transp. v. Aetna Ins. Co., 96 A.D.2d 942, 943, affd 61 N.Y.2d 665 on mem at App. Div.). While Veteran's acts may have been a proximate cause of plaintiff Frances Ruggerio's injuries, that is only determinative of the underlying liability of the insured. An insurance policy, however, is in essence a contract and must be construed in accordance with the intent of the parties as expressed in the clear language of the policy ( Zappone v. Home Ins. Co., 55 N.Y.2d 131; Lumbermens Mut. Cas. Co. v. Allstate Ins. Co., 51 N.Y.2d 651). Here, the policy clearly stated "[t]his insurance does not apply * * * to bodily injury * * * arising out of the ownership * * * operation [or] use * * * of * * * any automobile * * * owned or operated by * * * any insured". We have great sympathy for the plight of plaintiffs, whose recovery on a judgment of over $200,000 is virtually limited to the $10,000 insurance policy Veteran held on its taxis, but that is a matter which must be addressed by the Legislature. Titone, J.P., Mangano, Weinstein and Brown, JJ., concur.