General Mutual Insurance v. Sun Insurance

Reynolds, J. This is an appeal from a judgment of the Supreme Court, Sullivan County, dismissing appellant’s complaint. This action for a declaratory judgment arose from an accident involving a tractor-trailer and an automobile. Appellant, the insurer for the tractor owner, thereafter settled with the occupants of the car with the consent of the respondent, the insurer for the trailer owner. Appellant in the present action seeks to recover contribution from respondent for one half of the settlement. The court below dismissed the complaint on the grounds that under the policy issued by respondent to its insured respondent was not a coinsurer of the tractor. The court below then held that it was, therefore, immaterial whether the tractor owner was an additional insured under the trailer owner’s policy. 'Such arguments, however, overlook the fact that the driver of the tractor was an additional insured under the trailer owner’s policy by virtue of the omnibus clause mandated by statute (Vehicle and Traffic Law, § 388, subds. 1, 2, 4), as implemented by regulation (11 NYCRR 60.1 [c]), and must, therefore, be considered as being covered separately from the trailer owner under appellant’s policy (Sperling v. Great Amer. Ind. Co., 7 N Y 2d 442). If the driver is protected by respondent’s policy as well as appellant’s policy appellant would be entitled to contribution. Respondent urges that under the terms of the policy the driver is specifically excluded from coverage in the instant situation. Whether or not they are otherwise valid, the exclusionary provisions of the policy and the regulation which purports to authorize them (11 NYCRR 60.2 [c]) are inoperable upon the facts before us. Under the statute (Vehicle and Traffic Law, § 388, subd. 1), the operator of a tractor-trailer combination is to [137] be deemed the operator of both units; the omnibus clause of respondent’s policy, as mandated by statute, constitutes the operator an additional, independently insured person because he is the operator with permission, and the exclusion cannot apply because he is such an insured and the covered vehicle was not, in the language of the exclusion, ‘ ‘ owned or hired ’ ’ by him. Consequently, we are not called upon, in this case, to determine whether the regulation and the exclusion clause are invalid generally as in conflict with section 388. The judgment dismissing the complaint should be reversed, on the law and the facts, and judgment granted for appellant.