Allstate Insurance v. Pestar

Order unanimously reversed on the law with costs, motion denied, cross motion granted and judgment declared, in accordance with the following memorandum: Rachel Pestar, an infant, was seriously injured when she dove from a tree stump into a lake owned and maintained by the State. Her parents filed a claim against the State in her behalf and alleged that the State was negligent in permitting swimming and diving in the area, in failing to remove the tree stumps and in not warning of the alleged dangerous condition. The State interposed a counterclaim against the parents seeking contribution on the ground that Rachel’s injuries were caused "in whole or in part by the negligent supervision, negligent encouragement, negligent representations and/or culpable conduct” of her parents. The parents requested that Allstate Insurance Company defend them and pay any judgment against them on the counterclaim under their homeowner’s policy. Supreme Court erred in granting Allstate’s motion for summary judgment and in denying defendants’ cross motion for summary judgment. Although the policy specifically excludes coverage for bodily injuries sustained by an insured person, such as Rachel, the liability at issue on the State’s counterclaim is not the parents’ liability to Rachel but rather the parents’ potential liability to the State on a claim of 932 equitable apportionment. Accordingly, we declare that Allstate has a duty to defend and indemnify the parents with respect to the State’s counterclaim (see, Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551, 557; Iamele v Nationwide Mut. Ins. Co., 103 AD2d 1027). We have considered the parents’ remaining argument regarding the alleged untimeliness of the disclaimer and find it without merit. (Appeal from order of Supreme Court, Onondaga County, Miller, J.—declaratory judgment.) Present—Callahan, J. P., Denman, Green, Balio and Davis, JJ.