732 N.Y.S.2d 495 | N.Y. App. Div. | 2001
—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff, Progressive Insurance Company (Progressive), commenced this action seeking, inter alia, a declaration that defendant Zurich Insurance (Zurich) and not Progressive must defend and indemnify Christopher Loder, Sr. (Loder) in the underlying wrongful death action. Loder’s granddaughter had just left Loder’s vehicle when she was struck by a vehicle driven by defendant Michael Greco and owned by defendant Airborne Freight Corp. (Airborne). Both Greco and Airborne were named as defendants in the underlying action. Loder had pulled into the right-hand parking lane of the road, and his granddaughter had to cross in front of his vehicle and then cross two lanes of traffic in order to reach her home. She was struck as she crossed the street. At the time of the accident, Loder maintained an automobile insurance policy with Progressive and a homeowner’s policy with Zurich.
Supreme Court erred in granting in its entirety the motion of Zurich and the cross motion of Greco and Airborne and declaring that Progressive and not Zurich had a duty to defend and indemnify Loder in the underlying action, which has not yet been tried. The court determined that the accident arose solely from Loder’s use and operation of a motor vehicle and did not arise from Loder’s alleged negligent supervision. The