Opinion
November 15, 1989
Appeal from the Supreme Court, Onondaga County, Murphy, J.
Present — Callahan, J.P., Denman, Green, Pine and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed with costs to defendants Putter and All Putter Company and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: When these actions were previously before this court, we determined that, although All Putter had been sued in action No. 1 only for contractual indemnity pursuant to its contract with Approved, that fact did not preclude a finding that there could be liability coverage under principles of common-law indemnity (see, O'Dowd v American Sur. Co., 3 N.Y.2d 347; Aetna Cas. Sur. Co. v Lumbermens Mut. Cas. Co., 136 A.D.2d 246, lv denied 73 N.Y.2d 701). We also determined in action No. 2 that, because All Putter had been vouched in, it had been placed at risk and was entitled to whatever insurance coverage its policies of insurance provided (see, Continental Cas. Co. v Cole, 809 F.2d 891). Mixed questions of law and fact existed, however, with respect to which, if any, policies of insurance issued by Liberty Mutual Insurance Co. and CNA Insurance Co. provided liability insurance at the time of the occurrence. We remitted these actions to Supreme Court for a determination of the coverage issue (All Putter Co. v Liberty Mut. Ins. Co., 127 A.D.2d 977; Approved Pharm. Corp. v Putter, 127 A.D.2d 978). Nevertheless, on remittal Supreme Court addressed only the claim of contractual indemnity alleged in Approved's complaint. Contrary to our decisions, Supreme Court granted the insurance carriers' summary judgment motions, stating that none of the policies provided for contractual coverage. Since there still has not been a determination made with respect to which, if any, policies of insurance provide liability coverage for the injuries complained of, we again remit these cases to Supreme Court to make a determination on coverage. Until such determination has been made, there can be no final disposition of either action. Because no issue has been raised with respect to the correctness of Supreme Court's order permitting plaintiff Approved Pharmaceutical Corp. to amend its complaint to increase the amount of damages, we affirm that portion of Supreme Court's order.