Opinion
December 18, 1950.
In this action to recover from respondent's public liability insurance carrier the amounts paid by respondent for counsel fees and in settlement of the cross claims asserted against respondent by the United States Government, in actions brought by respondent's employees, injured in an accident which occurred upon a ship owned by the Government, while such employees were engaged in repairing that ship, and by the administratrix of one such employee, similarly employed, who died as a result of that accident, judgment in respondent's favor for the full amount of such sums, with interest, reversed on the law, with costs, and the complaint dismissed on the law, with costs. The facts are not disputed and, insofar as implicit in the opinion below, are affirmed. By the insurance policy upon which this action is founded, appellant agreed to pay on behalf of respondent all sums which the latter was obligated by law to pay for damages because of bodily injury caused by accident, including death resulting therefrom, sustained by any person or persons, but provided that the policy did not apply to bodily injury or death of any employee of the insured while engaged in the business of the insured, or to any obligation for which insured might be liable under any workmen's compensation law. By that policy appellant further agreed "as respects insurance afforded by this policy" to defend any suit against the insured alleging such injury and seeking damages on account thereof. In our opinion, that insurance policy did not cover the sums paid by respondent upon which this action is predicated. The policy covers only claims for damages caused by bodily injuries or resulting death to persons other than insured's employees while engaged in the business of insured, and appellant agrees to defend suits for claims covered by the policy. ( Ashland Window House-cleaning Co., v. Metropolitan Cas. Ins. Co., 269 App. Div. 31, 35, 36; Matter of Egan v. Mealey, 265 App. Div. 44, 45, 46, affd. 290 N.Y. 790; Creem v. Fidelity Cas. Co., 141 App. Div. 493, mod. 206 N.Y. 733; Treadwell Co., v. United States Fidelity Guar. Co., 275 N.Y. 158, 162.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. [ 195 Misc. 309.]