Riehs v. Allstate Insurance

33 A.D.2d 907, 307 N.Y.S.2d 847, 1970 N.Y. App. Div. LEXIS 5825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1970
• Status: Published

Opinion

In an action for a declaratory judgment as to plaintiff’s rights under an automobile liability insurance policy which was issued to him by defendant Allstate Insurance Company, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered June 27, 1968 after a nonjury trial, which declares (1) that Antonio Roeco, defendant Mary Rocco’s intestate, was plaintiff’s employee and (2) that defendant Allstate Insurance Company is not obligated under the insurance policy to defend an action commenced against plaintiff by the decedent’s estate of Antonio Roeco. Judgment reversed, on the law and the facts, with costs to plaintiff against defendant Allstate Insurance Company, and judgment granted to plaintiff declaring that defendant Allstate Insurance Company is obligated to plaintiff, pursuant to the terms of the insurance policy issued to him, to defend him in the action commenced against him and defendants Gibbs by the decedent’s estate of Antonio Roeco and to pay any judgment rendered against him in said action, to the extent of the monetary limit of the policy. Defendant Allstate Insurance .Company relies on an exclusionary clause in the insurance policy as an affirmative defense. The elguse excludes coverage for injuries to employees of the insured arising out of and in the course of employment. In dur view no employer-employee relationship existed at the time of the accident. There being no other issue, declaratory judgment should have been granted to plaintiff as herein provided. Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuseello, JJ., concur.