FEDERAL INSURANCE COMPANY AND MIRAGE ENTERPRISES, INC. v. RYDER TRUCK RENTAL,
INC., ET AL., THE AETNA CASUALTY & SURETY COMPANY, ET AL., SUPERINTENDENT OF
INSURANCE OF THE STATE OF NEW YORK, &C.,
82 N.Y.2d 909, 631 N.E.2d 115, 609 N.Y.S.2d 173 (1994).
January 18, 1994
1 No. 120 SSM 32 (1994 NY Int. 003)
Decided January 18, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs,
and the certified question answered in the affirmative.
In this action primarily among insurers to apportion liability for a
$1.75 million settlement in a personal injury action, we agree with
the Appellate Division that the $1 million business auto policy issued
to Mirage Enterprises provides excess coverage. Regardless of the
finding below that the driver of the truck was a "special employee" of
Mirage, the court correctly concluded that the vehicle was not owned,
rented or used by Mirage, and thus did not trigger primary coverage
under the policy. The $1 million policy issued to Ryder Truck Rental
and the $500,000 policy issued to Erie Transfer Company, each
providing primary coverage, apply in full to the settlement. The
Appellate Division properly remitted the case to the trial court for
apportionment of the remaining $250,000 among the excess insurers.
We note, moreover, that while the Appellate Division properly applied
Pennsylvania Gen. Ins. Co. v Austin Powder Co. (68 NY2d 465) to bar
subrogation by insurers against their own insureds in this case, we do
not pass upon the applicability of Pennsylvania General to a
declaratory judgment action solely for apportionment of liability
among insurers.
On review of submissions pursuant to section 500.4 of the Rules, order
affirmed, with costs, and certified question answered in the
affirmative, in a memorandum. Chief Judge Kaye and Judges Simons,
Bellacosa, Levine and Ciparick concur. Judges Titone and Smith took no
part.
SNIPPETS:
FEDERAL INSURANCE COMPANY AND MIRAGE ENTERPRISES, INC. v. RYDER TRUCK RENTAL,
This memorandum is uncorrected and subject to revision before publication in the New York
In this action primarily among insurers to apportion liability for a $1.75 million settlement
Regardless of the finding below that the driver of the truck was a "special employee" of
We note, moreover, that while the Appellate Division properly applied Pennsylvania Gen.
Co. v Austin Powder Co. (68 NY2d 465) to bar subrogation by insurers against their own
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs,
Chief Judge Kaye and Judges Simons, Bellacosa, Levine and Ciparick concur.
Judges Titone and Smith took no part.
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