Opinion
2014-06-24
ALLSTATE INSURANCE COMPANY, Plaintiff–Respondent, v. William STAIB, Defendant, Kayla L., etc., et al., Defendants–Appellants.
Mainetti, Mainetti & O'Connor, P.C., Kingston (Michael A. Mainetti of counsel), for appellants. Lewis Johs Avallone Aviles, LLP, Islandia (Amy E. Bedell of counsel), for respondent.
Mainetti, Mainetti & O'Connor, P.C., Kingston (Michael A. Mainetti of counsel), for appellants. Lewis Johs Avallone Aviles, LLP, Islandia (Amy E. Bedell of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered June 5, 2013, which granted plaintiff insurer's motion for summary judgment declaring, among other things, that it had no duty to defend or indemnify defendant William Staib in the underlying personal injury action, and so declared, unanimously affirmed, without costs.
Defendant Staib sought coverage under an automobile insurance policy issued by plaintiff for injuries sustained when an unrestrained and unattended dog sitting in Staib's parked car bit Staib's niece, the infant defendant, as she walked by the vehicle. The policy provides that plaintiff “will pay for all damages an insured person is legally obligated to pay ... because of bodily injury or property damage ... from claims for accidents arising out of the ownership, maintenance or use, loading or unloading of an insured auto.” The infant defendant's injuries did not arise out of the “ownership, maintenance or use” of the automobile. Indeed, the vehicle itself did not produce the injury, nor did the accident arise out of the inherent nature of the vehicle ( see Eagle Ins. Co. v. Butts, 269 A.D.2d 558, 558–559, 707 N.Y.S.2d 115 [2d Dept.2000],lv. denied95 N.Y.2d 768, 721 N.Y.S.2d 605, 744 N.E.2d 141 [2000] ). Rather, the vehicle was merely the situs of the accident, which is not sufficient to trigger coverage under the plain terms of the subject policy provision ( see Walden v. Smith, 2014 WL 1428525, *12, 2014 Mo.App. LEXIS 432, *38 [Mo.Ct.App. W.D., April 15, 2014, No. W.D. 75982];Maine Mut. Fire Ins. Co. v American Intern. Underwriters Ins. Co., 677 A.2d 1073, 1075 [Me.1996] ). TOM, J.P., MOSKOWITZ, MANZANET–DANIELS, FEINMAN, GISCHE, JJ., concur.