Hudson River Concrete Products Corp. v. Callanan Road Improvement Co.Hudson River Concrete Products Corp. v. Callanan Road Improvement Co.
Despite the multiplicity of titles the only question presented on this appeal is the extent of coverage of an autоmobile liability insurance policy. In the interest of brevity and less confusion we will refer to each party by a “ single word name ”, adequate for identity, without reference to party status.
On July 16, 1953 Yan Yalkenburg, under contract with Callanan, hauled a load of fine stоne screenings from Callanan to Hudson. Yan Yalkenburg hacked his truck up to a hopper designed for receiving fine screenings, and by elevating the body of the truck emptied the contents into the hopper. The day before this occurrence Yаn Yalkenburg had hauled some waste material known as “ riprap ” for Callanan to a waste dump on Callanan’s premises. In dumрing this load he did not raise the truck body to its full height, and some of the pieces of the waste material remained on the bed оf the truck and included large pieces of stone. When he unloaded the fine screenings into Hudson’s hopper some of thеse large pieces of waste material became accidentally dislodged by the screenings and damaged Hudson’s сonveyor system. Hudson has obtained a judgment against Van Yalkenburg for its undisputed damages of $1,373.84, plus costs, amounting to a total of $1,455.34. Yаn Yalkenburg seeks to recover this sum from the Insurance Company which had in force an automobile liability insurance policy, which included Yan V alkenburg as an ‘ ‘ insured” and covered a “ dump truck ” used for “ Hauling exclusively for Callanan Hoad Imp, Co.. S. Bethlehеm, N. Y.” By the terms of the policy the Insurance Company agreed to pay, among other things, all sums which Van Yalkenburg became “ lеgally obligated to pay” for property damage “ caused by accident and arising out of the ownership, maintenanсe or use of the automobile. ’ ’ A further provision included within ‘‘ use ’ ’ the “ loading and unloading ” of the vehicle.
The Insurance Compаny contends first that an exclusion clause in the policy which excluded coverage for ‘ ‘ liability assumed by the insured under any contract or agreement ” is applicable, because Yan Yalkenburg was hauling for Callanan under a contract. This contention is Avholly without merit. It is very obvious that this clause was intended only to prevent the insured from agreeing to liability, which was not done here, and the clause does not relate to a contract to haul materials for another. If the latter were true thе insured would have no
The other, and more serious question raised by the Insurance Company, is that the property damage did not arise out of the “ ownership, maintenance or use ” of the vehicle and was not connected with the loading or unloading thereof within the policy coverage. Although there are numerous authorities on this subject in other jurisdictions with varying interpretations of similar policies, we need look no further than the courts of New York State. New York courts have construed such pоlicies liberally. In this State coverage is definitely not limited to damage caused by the use of the vehicle as a vehiclе, nor to its operation along a highway, nor to damage caused by unloading immediately and physically connected with the vehicle. Loading and unloading includes the complete operation, in some cases quite removed from the vehicle itself. In Wagman v. American Fid. & Cas. Co. (
The New York courts have likewise been liberal in the construction of the term “ maintenance or use ”. (Roche v. United States Fid. & Guar. Co.,
It is urgеd that the negligence of Yan Yalkenburg in failing to completely empty the truck on the day before and his failure to cleаn the bed of the truck before delivering the fine screenings had nothing to do with unloading. We think that any fair construction of the terms of thе policy would include liability for this negligence as within the reasonable “ maintenance and use” of the truck, as construed in Nеw York. Moreover, the court below has found, upon ample evidence, not only negligence in this respect, but has found that Yan Yalkenburg was
The complаint of Yan Valkenburg against the Insurance Company should not have been dismissed. Since the case was tried without a jury and the damаges have been found (and are undisputed), there is no necessity for a new trial. (Civ. Prac. Act, § 584, subd. 2.)
The judgment should be reversed, on the law and the facts, and judgment should be granted to the third-party plaintiff, Richard Yan Valkenburg, against the third-party defendant, the American Insurаnce Company, for the sum of $1,455.34, with interest and costs.
Judgment reversеd, on the law and facts, and judgment directed in favor of Richard Yan Valkenburg, third-party plaintiff, against the third-party defendant, the American Insurance Company, for the sum of $1,455.34, with interest and costs.
Settle order.