86 A.D.2d 736 | N.Y. App. Div. | 1982
Lead Opinion
Appeal from an order of the Supreme Court at Special Term (Prior, Jr., J.), entered August 5,1980 in Albany County, which denied defendant’s motion to dismiss the complaint for failure to state a cause of action. Following her discharge from plaintiff’s employ, Kathleen Wood and her husband commenced an action for damages against plaintiff alleging that she was discharged due to a disability, in
Since defendant has not raised the issue, we have assumed for the purpose of this appeal that the injuries alleged in the Woods’ complaint constitute “bodily injury” within the meaning of the general liability and workers’ compensation policies.
Dissenting Opinion
dissents and votes to affirm in the following memorandum. Kane, J. (dissenting). I believe that there should be a declaration that plaintiff is entitled to a defense under coverage B of its workers’ compensation and employer’s liability policy of insurance. This conclusion is based upon by reading of Miller v Continental Ins. Co. (40 NY2d 675). As pointed out by the majority, Miller instructs us that in construing the word “accident” in an insurance policy, we must reason from the point of view of the insured and in accordance with the understanding of the average man. I do not find it unreasonable to conclude that this employer, faced with defending the underlying action herein, would expect legal representation to be provided by the insurance company covering injuries alleged to have arisen out of employment with plaintiff. Defendant has not satisfactorily established that the claim herein rests within an exclusion of the policy to the extent that it is relieved of its heavy obligation to provide the insured with a defense (International Paper Co. v Continental Cas. Co., 35 NY2d 322). Accordingly, I would affirm the determination of Special Term insofar as it provides for such coverage.