70 Misc. 2d 1028 | N.Y. Sup. Ct. | 1972
Motion by plaintiff for summary judgment in an action for declaratory judgment brought to determine the rights of the respective parties under a products liability insurance policy. Plaintiff seeks an adjudication that 'defendant is obligated to undertake, on its behalf, the defense of a third-party action; to pay any judgment awarded therein, and to reimburse plaintiff for the costs and expenses incurred in defense of that lawsuit. Defendant disclaims issuance of a policy of insurance to plaintiff, and its opposing affidavit requests that summary judgment be granted in its favor.
The plaintiff Chatham Corp. is the_suecessor by merger to Duraluminum Ladder Mfg. Co., Inc., which was named as an insured under a products liability policy issued by defendant,
The defendant Argonaut ooncededly never issued a policy to plaintiff. On the other hand, Argonaut, admittedly, insured Duraluminum at the time of Mrs. Gerdes ’ accident, which took place before the merger between plaintiff and Duraluminum. Duraluminum, however, is not named as a party to the main or third-party action, and no cause of action is alleged against it in either action.
The question presented is one of identity of the insured rather than the usual issue of whether coverage is afforded under the policy. Argonaut’s issuance to Duraluminum of the liability policy cast upon the insurer contingent contractual obligations which constitute an indebtedness owing to the insured (Seider v. Roth, 17 N Y 2d 111). This asset of Duraluminum, upon its merger with plaintiff, automatically vested in plaintiff as the surviving corporation by virtue of the provisions of section 906 (subd. [b], par. [2]) of the Business Corporation Law. It may be said, under the construction given this statute, that nothing is lost by a merger of corporations and that any right lawfully belonging to any of the constituent corporations merged together can be asserted by the surviving corporation (Platt Corp. v. Platt, 21 A D 2d 116, 120, affd. 15 N Y 2d 705). Viewed in this light, the failure to include Duraluminum as a defendant in the third-party action or to name it in the pleadings is not fatal, provided it can be ascertained that Duraluminum, rather than some other party, is the subject of the complaint brought by the third-party plaintiff.
It is well settled that the obligation of an insurer to defend an action brought against its insured is determinable from the allegations of the complaint (Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N. Y. 148) and the bill of particulars (Everlast Sporting Goods Mfg. Co. v. Aetna Ins. Co., 23 A D 2d 641). In this case, while Duraluminum is not named in the pleadings, the bill of particulars served by the third-party plaintiff does claim the
The motion of plaintiff is denied in all other respects. The request for judgment directing defendant to pay under its policy rests on considerations different from those applicable to the duty to defend. Whether the third-party complainant can, or will, establish that the component parts of the ladder were actually supplied by Duraluminum or that they were, in fact, defective cannot be determined in advance of trial of the other actions. Insofar as this action, it seeks a declaration of the rights of the parties in this respect, it is premature (Prashker v. United States Guar. Co., 1 N Y 2d 584, 592; Everlast Sporting Goods Mfg. Co. v. Aetna Ins. Co., 23 A D 2d 641, supra), and Argonaut is granted partial summary judgment declaring plaintiff is not entitled to such adjudication at this time.