68 Misc. 2d 779 | N.Y. City Civ. Ct. | 1971
On the night of January 19, 1971, Andrew Lynton, while driving his father’s Volkswagen on an eastside Manhattan street drew abreast of a double-parked taxi. The cab was too close to the vehicles parked at the curb to its left, so its exiting passenger opened the street-side door just in time for it to meet Andrew’s oncoming car. There is little doubt that both the cab driver and passenger were negligent; that Andrew was free of neglect; and that the consequent damage was in the sum of $404.29. Prior to instituting this action Andrew’s father settled his claim against the taxi company for $250 delivering a release which reserved ‘ ‘ however, all claims * * * that I may have against ’ ’ the passenger, the defen-
dant herein. This release will not, of course, discharge the negligent passenger (General Obligations Law, § 15-104, Plath v. Justus, 33 A D 2d 833); and the plaintiff being free of contributory negligence, may have judgment against her (cf. Mills v. Gabriel, 259 App. Div. 60, affd. 284 N. Y. 755).
The defendant, as third-party plaintiff, contends that she is an additional assured under the taxi company’s policy of liability insurance and is therefore entitled to both indemnification and a defense.
In accordance with the requirements of section 370 of the Vehicle and Traffic Law the policy provides that it shall “ inure to the benefit of any person legally operating any motor vehicle described herein in the business of the insured ’ ’ provided of course that such operation is with the latter’s permission. The issue narrows to one question; does the act of the passenger in opening the door of a taxicab or other motor vehicle constitute “ operating ” it within the meaning of the policy? I hold that it does.
The statutory scheme of the Insurance Law (§ 167, subd. 1) and the Vehicle and Traffic Law (arts. 6, 7, 8, 11) reveal a legislative intent to provide compensation by insurance to ‘ ‘ innocent victims of motor vehicle accidents ” (Vehicle and Traffic Law, § 310, subd. [2]).
To give effect to that purpose the courts have liberally construed words such as “insured”, “operate” “use”, “ occupy ” and the like so that people damaged in their persons or property through occurrences involving motor vehicles would have the benefit of mandated insurance coverage. Thus, a school district has been held to be an “insured” within the meaning of the statute (Vehicle and Traffic Law, § 370) in an action brought against the school district arising out of an assault by one pupil passenger upon another (Board of Educ. v. Travelers Ind. Co., 25 A D 2d 599). A vehicle was deemed to
The act of a passenger in opening the door of a taxicab is within the contemplation of the owner’s business (indeed, if a New York City cab driver got out to open a passenger’s door, it would be, for the passenger, a memorable event); such an act can obviously cause property damage or personal injury of the character, if not the severity, of an automobile collision; and as such must be deemed an “ operation ” of the vehicle with the assured’s consent.
The third-party defendant (the insurer) protests that it has already settled the plaintiff’s claim once and should not be required to respond in damages a second time. The answer of course is that Shamrock was itself Miss Metcalf’s insurer and owed her a duty of good faith, which in the context of this case “ means an adequate protection of the interests of the assured * * * It is absolutely no answer for the company to say it paid * * * if in so doing it fully protected one of its insureds and left the other completely exposed” (Smoral v. Hanover Ins. Co., 37 A D 2d 23, 25).
Judgment may be entered in favor of the plaintiff against the defendant in the sum of $154.29, with interest from January 19,1971. Judgment may be entered in favor of the third-party plaintiff against the third-party defendant in the amount of plaintiff’s total judgment together with the sum of $100 as attorney’s fees for the defense which the third-party defendant should have afforded the third-party plaintiff.
