Opinion
December 11, 1961
In two consolidated actions: Action No. 1 being by plaintiff D'Aquilla Brothers Contracting Co., Inc., a trucking corporation, pursuant to section 167 Ins. of the Insurance Law, to compel the insurer, defendant Hartford Accident and Indemnity Company, in accordance with its contractor's policy issued to its insured, Frens Construction Company, Inc., an excavation subcontractor, to pay a judgment for contribution obtained by the plaintiff trucking corporation against said subcontractor which the latter failed to pay; and Action No. 2 being by the Hartford Company against the trucking corporation and its insurer, defendant Liberty Mutual Insurance Company, to declare that Liberty by virtue of its automobile policy issued to the trucking corporation is solely liable for the payment of the said judgment, the trucking corporation and its said insurer Liberty, appeal from a judgment of the Supreme Court, Queens County, entered April 6, 1960, upon the decision of the court ( 22 Misc.2d 733) after a nonjury trial, which is in favor of Hartford, the defendant in Action No. 1 and the plaintiff in Action No. 2; which dismissed on the merits the complaint in Action No. 1; and which, with respect to Action No. 2, declared: (1) that Liberty's policy covered both the excavation subcontractor and its crane operator "as an additional insured;" (2) that Hartford's policy did not cover the excavation subcontractor's crane operator; (3) that said subcontractor is entitled to recoup its loss from him; and (4) that Liberty is solely responsible for the payment of the trucking corporation's judgment for contribution against said subcontractor. Judgment modified on the law and the facts as follows: (1) by striking out the first decretal paragraph dismissing the trucking corporation's complaint in Action No. 1; (2) by substituting, in lieu of such first decretal paragraph, a paragraph directing recovery in Action No. 1 by the trucking corporation, D'Aquilla Brothers Contracting Co., Inc., against defendant, Hartford Accident and Indemnity Company, for $5,638.88, with interest thereon from July 14, 1955; said sum being one third of the unpaid $16,916.65 judgment for contribution obtained on such date by the trucking corporation D'Aquilla against the excavation subcontractor, Frens Construction Company, Inc.; (3) by striking out the fifth and sixth subdivisions of the third decretal paragraph, which declare that the excavation subcontractor Frens has the right to recoup its loss from its employee who operated the crane in the loading of the truck owned by the trucking corporation D'Aquilla, resulting in the accident on August 22, 1952 to one Ralph Marigliano; and which declare that the defendant Liberty, as the sole insurer of the employee of Frens who operated the crane, alone is obligated to pay the said $16,916.65 judgment for contribution entered in favor of the trucking corporation against the excavation subcontractor for the latter's prorata share of the judgment obtained by Ralph Marigliano; and (4) by substituting, in lieu of such fifth and sixth subdivisions, the following three subdivisions numbered 5, 6 and 7, respectively: "5. That the policy of insurance issued by the plaintiff, Hartford Accident and Indemnity Company to the excavation subcontractor, Frens Construction Company, Inc., covered such subcontractor as the named insured, in the loading of the truck owned by the trucking corporation, defendant D'Aquilla Brothers Contracting Co., Inc., resulting in the accident on August 22, 1952 to one Ralph Marigliano. 6. That defendant Liberty Mutual Insurance Company and plaintiff Hartford Accident and Indemnity Company, as insurers of the excavation subcontractor, Frens Construction Company, Inc., are obligated to pay the $16,916.65 judgment for contribution entered July 14, 1955, in favor of defendant D'Aquilla Brothers Contracting Co., Inc., and that each insurer is required to pay such judgment in proportion to the applicable limits of liability stated in its insurance policy, with interest from the date of entry of said judgment for contribution. 7. That the applicable limit of liability of policy number AE-2-200008-51 issued by defendant Liberty Mutual Insurance Company is $100,000; and that the applicable limit of liability of policy MCS 29993 issued by plaintiff Hartford Accident and Indemnity Company is $50,000." As so modified, judgment affirmed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. These consolidated actions are the aftermath of an action by one Ralph Marigliano against the trucking corporation, the excavation subcontractor and the general contractor, Efroy Construction Corporation, by reason of personal injuries sustained when struck by a rock which fell from a truck owned by the trucking corporation; the truck having been loaded by a crane operator employed by the excavation subcontractor at a building excavation site. In such action the plaintiff Marigliano obtained a judgment for $50,000 against the three defendants specified, such judgment being against them jointly. The judgment was satisfied by the general contractor paying $15,000 and by the trucking corporation paying the balance of $35,000. Thereafter, on July 14, 1955, based on its right of contribution the trucking corporation obtained a judgment for $16,916.65 against the excavation subcontractor, which it has failed to pay. The trucking corporation thereupon brought Action No. 1, pursuant to section 167 Ins. of the Insurance Law, against Hartford, the excavation subcontractor's insurer, to compel it to pay the judgment for contribution in accordance with its policy. Hartford then instituted Action No. 2 for a declaratory judgment against the trucking corporation and its insurer, Liberty, which had issued an automobile liability policy insuring the trucking corporation. Each insurer disclaimed liability under its policy for the payment of the judgment for contribution. In our opinion, in view of the terms of the respective policies, both insurers are liable, in proportion to the amounts of their respective policies, for the payment of the unpaid judgment for contribution against the excavation subcontractor. We find that such subcontractor was in control of the excavation site within the meaning of Hartford's policy. Hence, such subcontractor's act of loading the truck there was not excluded from the coverage of said policy. We also find that in the prior action by Marigliano, the excavation subcontractor was held liable for its failure to employ "trimmers" and to properly trim the load; and that such failure constituted its own negligence, and not the negligence of its crane operator. Therefore it is precluded from obtaining indemnity from him for its own negligence. On this appeal the defendant Liberty does not contest its obligation under its policy to cover the excavation subcontractor Frens as an additional insured. Since both insurers are responsible, appellants' suggestion that the liability upon the judgment for contribution against the excavation subcontractor be apportioned between the two insurers pursuant to the "other insurance" clauses in each policy, is taken by us as a concession of the partial defense of "other insurance." We pass upon no other questions. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur. [ 22 Misc.2d 733.]