Richmond Farms Dairy v. National Grange Mutual Insurance

60 A.D.3d 1411, 875 N.Y.S.2d 681
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 20, 2009
StatusPublished
Cited by4 cases

This text of 60 A.D.3d 1411 (Richmond Farms Dairy v. National Grange Mutual Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richmond Farms Dairy v. National Grange Mutual Insurance, 60 A.D.3d 1411, 875 N.Y.S.2d 681 (N.Y. Ct. App. 2009).

Opinion

[1412]*1412Appeals and cross appeals from a judgment (denominated order) of the Supreme Court, Erie County (John A. Michalek, J.), entered January 25, 2008 in a declaratory judgment action. The judgment, among other things, granted in part the motion of defendant National Grange Mutual Insurance Company for summaiy judgment and granted in part the cross motions of defendant Susan Miller and defendant-third-party plaintiff for summary judgment.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating in its entirety the declaration in the second decretal paragraph and granting judgment in favor of defendant National Grange Mutual Insurance Company as follows:

“It is ADJUDGED and DECLARED that defendant National Grange Mutual Insurance Company is not obligated to defend or indemnify defendant-third-party plaintiff in the underlying actions under the business automobile insurance policy issued to plaintiff Richmond Farms Dairy, LLC, and by vacating the declaration in the fourth decretal paragraph and granting judgment in favor of third-party defendant as follows:

“It is ADJUDGED and DECLARED that third-party defendant is not obligated to provide excess coverage for defendant-third-party plaintiff in the underlying actions under the farm umbrella policy issued to plaintiff Richmond Farms Dairy, LLC, and as modified the judgment is affirmed without costs.”

Memorandum: As we set forth in our prior decision in Miller v Richardson (48 AD3d 1298 [2008], lv denied 11 NY3d 710 [2008]), Susan Miller and George W. Rapson, Jr., who are defendants in the action and third-party action now before us, were injured when a vehicle driven by Lorraine Richardson, presently a defendant and the third-party plaintiff, made a sudden left turn in front of the motorcycle driven by Rapson on which Miller was a passenger. The vehicle driven by Richardson [1413]*1413was towing a hay wagon owned by plaintiff, Richmond Farms Dairy, LLC (Richmond Farms). Richardson had purchased hay from Richmond Farms and was returning the empty hay wagon to Richmond Farms when the accident occurred. Miller and Rapson each commenced underlying actions.

Richmond Farms had a business automobile insurance policy (business policy) with National Grange Mutual Insurance Company (National Grange), a defendant herein, and a farm umbrella policy with Cherry Valley Cooperative Insurance Company (Cherry Valley), the third-party defendant herein. John Richmond (Richmond) had a personal automobile insurance policy with National Grange.

National Grange disclaimed coverage under its business policy with Richmond Farms but subsequently agreed to defend Richmond Farms in the underlying actions commenced by Miller and Rapson. National Grange also disclaimed coverage under its personal automobile insurance policy with Richmond. In addition, National Grange and Cherry Valley disclaimed coverage for Richardson under all policies.

Richmond Farms and Richmond (collectively the Richmonds) commenced this declaratory judgment action seeking a declaration that National Grange was obligated to defend and indemnify the Richmonds in the underlying actions pursuant to the business policy. Miller asserted a cross claim in which she joined in that request for declaratory relief, and Richardson asserted a cross claim seeking a declaration that National Grange was obligated to defend and indemnify her under both the business and automobile policies. Richardson also commenced a third-party action seeking a declaration that Cherry Valley must provide coverage for her under the umbrella policy.

Supreme Court thereafter granted in part the motion of National Grange and denied in part the cross motions of Richardson and Miller, declaring that National Grange is not obligated to defend or indemnify Richardson or her husband under the personal automobile insurance policy issued to Richmond. The court further denied in part the motion of National Grange and granted in part the cross motions of Richardson and Miller, declaring that National Grange is obligated to defend and indemnify Richardson under the business policy issued to Richmond Farms. In addition, the court granted the cross motion of the Richmonds, declaring that National Grange is obligated to defend and indemnify them under the business policy issued to Richmond Farms, and the court granted in part the cross motion of Richardson, declaring that Cherry Valley “must provide excess coverage” for her.

[1414]*1414We note at the outset that the issue whether National Grange is obligated to indemnify the Richmonds is moot, based on our prior decision in Miller in which we determined as a matter of law that the Richmonds “are not liable for injuries sustained by Miller and Rapson by virtue of [their] ownership of the hay wagon being towed by Lorraine Richardson at the time of the collision” (id. at 1300).

We further conclude that the court erred in declaring that National Grange was obligated to defend and indemnify Richardson under the business policy, and we therefore modify the judgment accordingly. Addressing first the duty to indemnify, we note that such a duty may be imposed only in the event that the insured is liable for a loss that is covered by the policy (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419 [1985]). Here, we conclude that the truck driven by Richardson at the time of the accident was not a covered vehicle within the meaning of the business policy. Contrary to the contentions of Miller and Richardson, the truck was not a covered “auto” within the meaning of “nonowned autos” in the business policy. Such “nonowned autos” are defined as vehicles that “you [i.e., Richmond Farms,] do not own, lease, hire, rent or borrow that are used in connection with [Richmond Farms’] business.” The definition of covered “autos” also includes “[m]obile equipment while being carried or towed by a covered ‘auto.’ ” Under that definition, the hay wagon being towed by Richardson is covered only in the event that it was being towed by a covered “auto.” We conclude that the vehicle driven by Richardson that was used to tow the hay wagon at the time of the collision is not a covered auto. The phrase “used in connection with your business” is not ambiguous under the facts of this case. Although that phrase is not defined in the policy, it is to “ ‘be understood in [its] plain, ordinary, and popularly understood sense, rather than in a forced or technical sense’ ” (Burriesci v Paul Revere Life Ins. Co., 255 AD2d 993, 994 [1998]). In addition, a court “ ‘may not disregard clear provisions which the insurers inserted in the policies and that the insured accepted’ ” (Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592 [1996]). Here, it is clear from the language of the business policy that the business policy covered vehicles that are not owned, leased, hired, rented or borrowed by Richmond Farms but are nevertheless associated with risks involving the business of Richmond Farms. The policy language “used in connection with your business” is not so broad as to encompass a customer using his or her own vehicle to transport purchased items home. Further, the record establishes that, although Richmonds were in the business of selling hay, they [1415]*1415were not in the business of delivering hay. Indeed, Richardson asked to use the hay wagon in order to transport the hay, and she was not charged a fee for the use of the hay wagon.

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Cite This Page — Counsel Stack

Bluebook (online)
60 A.D.3d 1411, 875 N.Y.S.2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richmond-farms-dairy-v-national-grange-mutual-insurance-nyappdiv-2009.