Hartford Insurance v. Maryland Casualty Co.

—In an action, inter alia, to declare that the Maryland Casualty Company provided the primary liability insurance coverage for Kenneth K. Madsen and A & T Radiator, Inc., plaintiff, Hartford Insurance Company, appeals from an order of the Supreme Court, Suffolk County, entered November 3, 1978, which denied its motion for summary judgment. Order modified, on the law, by adding thereto a provision declaring that the defendant the Maryland Casualty Company is not required to provide a defense for defendants Madsen and A & T Radiator, Inc., in a negligence action instituted by defendants Lefferts against them and now pending in Suffolk County. As so modified, order affirmed, with $50 costs and disbursements to defendant the Maryland Casualty Company. A review of the complaint in the negligence action brought by the Lefferts against Madsen and A & T Radiator, Inc., clearly establishes that at the time Madsen was driving the car that injured the infant plaintiff, he was not involved in any of the activities covered by the "Automobile Hazard 1” provision of Maryland’s policy, but was clearly covered by the "Automobile Hazard 2” provision of the garage policy issued by Hartford to A & T Radiator, Inc., Madsen’s employer. Accordingly, there exists no factual basis or legal theory which may be developed at trial arising out of this incident that would obligate the defendant insurance company to pay, and, therefore, there is no duty to defend (Contracting Plumbers’ Coop. Restoration Corp. v Hartford Acc. & Ind. Co., 59 AD2d 921; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, mot for rearg den 28 NY2d 859; cf. Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875). Suozzi, J. P., O’Connor and Rabin, JJ., concur.