Summary
In Muller v Sun Indem. Co. (276 App. Div. 1028, affd 302 N.Y. 634), the Court held that a loading and unloading exclusion in a policy of liability insurance was inapplicable to an accident which occurred when two workers were carrying a piano down a flight of stairs after having removed the piano from the insured's truck.
Summary of this case from General Accident Insurance v. United States Fidelity & Guarantee InsuranceOpinion
March 27, 1950.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ. Settle order on notice.
In an action for judgment declaring the rights and liabilities of the parties under three policies of insurance, order granting plaintiff's motion for judgment on the pleadings as to the Sun Indemnity Company of New York, and denying that motion as to the Coal Merchants Mutual Insurance Company of New York and (American) Lumbermens Mutual Casualty Company of Illinois; granting the motions of the last named two insurance companies to dismiss the complaint as to them, and dismissing the cross complaints between the several defendants, modified on the law and the facts by substituting in the first ordering paragraph the word "defendants" in the place of "defendant," and inserting after the words "Sun Indemnity Company of New York" the words "Coal Merchants Mutual Insurance Company of New York and (American) Lumbermens Mutual Casualty Company of Illinois," and by striking out all of the following paragraphs thereof except the last paragraph. The judgment entered upon the said order is modified on the law and the facts in conformity with said order, as so modified, and so as to declare all three defendant insurance companies liable under their respective policies and, up to the limits thereof, to contribute in paying such sums as the insured may be required to pay as damages for losses from the accident stated in the complaint, and to defend, on plaintiff's behalf, all actions brought against him arising from said accident. As so modified, the order and the judgment are unanimously affirmed, with one bill of costs to plaintiff-appellant. In our opinion the policies of the defendants-respondents covered the insured's liability for damage arising from the accident stated in the complaint. ( Birnbaum v. Jamestown Mut. Ins. Co., 298 N.Y. 305, 313; Bird v. St. Paul Fire Marine Ins. Co., 224 N.Y. 47, 51.) The complaint alleges that employees of the plaintiff-appellant warehouseman transported a piano by automobile truck from his warehouse to a residence where, while the employees were carrying the piano from the first floor downstairs to the basement, a high pressure gas fitting was broken, gas escaped and exploded with resulting deaths, personal injuries and property damage, for which plaintiff-appellant has been sued in several pending actions. Respondents' liability policies, insuring plaintiff-appellant against liability incurred in the handling of household goods away from the insured's premises, excluded from coverage accidents caused in the loading or unloading of vehicles. Respondents claim that, because of this exclusory clause, their policies do not cover this accident. At best, these stated provisions of the policies presented an ambiguity which must be resolved in favor of the insured plaintiff-appellant. ( Hartol Products Corp. v. Prudential Ins. Co., 290 N.Y. 44, 49; Tonkin v. California Ins. Co., 294 N.Y. 326, 328.)