Opinion
February 2, 1990
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Dillon, P.J., Callahan, Boomer, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiffs, in accordance with the following Memorandum: Plaintiffs own and operate Kim Vale Farms. On February 17, 1987, George Henderberg, a farm employee, was using the farm's tractor to pull a vehicle from a highway ditch near the farm. The tractor was struck by a vehicle operated by Dana Overend, and Henderberg was pinned between the tractor and the disabled vehicle, causing severe injuries that resulted in his death. The administratrix of Henderberg's estate instituted an action against Overend, the driver and owner of the disabled vehicle, and the Town of Poland. Overend then commenced a third-party action for contribution or indemnification against plaintiffs. Defendant, which issued a policy for property and liability coverage to plaintiffs, disclaimed coverage upon the ground that the policy excluded "liability * * * resulting from bodily injury to a farm employee." Plaintiffs instituted the instant action, seeking a declaration of the rights of the parties, indemnity, the costs of defending the third-party action, and attorney's fees in this action. Following joinder of issue, Supreme Court denied plaintiffs' motion for summary judgment.
It is well established that policy language excluding liability for bodily injury to an employee is not specific enough to exclude liability on a third-party claim for contribution or apportionment (see, Insurance Co. v Dayton Tool Die Works, 57 N.Y.2d 489; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 N.Y.2d 551; North Riv. Ins. Co. v United Natl. Ins. Co., 152 A.D.2d 500; American White Cross Labs. v North Riv. Ins. Co., 101 A.D.2d 780; Weeks v County of Oneida, 91 A.D.2d 1165; cf., Ramirez v United States Fid. Guar. Co., 133 A.D.2d 146, 147, where language excluding "`any obligation of the insured to indemnify or contribute with another because of damages arising out of such injury'" was found to be specific enough).
Defendant contends, however, that the language "liability * * * resulting from bodily injury" in the subject policy should be construed to include third-party claims for contribution and indemnity, citing, as authority, Matter of Consolidated Mut. Ins. Co. (Arcade Cleaning Contrs. — Superintendent of Ins.) ( 60 N.Y.2d 1, 5), which upheld a determination that statutory language, "liability * * * `arising out of the death or injury'", was sufficiently broad to include claims for contribution or indemnification. Reliance upon the Consolidated decision is misplaced. That case dealt with statutory construction, and the court specifically observed that the rules of construction, the language used, and the context in which the language was used were materially different from the construction of insurance contract provisions (see, Matter of Consolidated Mut. Ins. Co. [Arcade Cleaning Contrs. — Superintendent of Ins.], supra, at 10). Use of the words, "liability arising out of bodily injury" is not sufficient to include third-party claims for contribution or apportionment (see, Insurance Co. v Dayton Tool Die Works, 57 N.Y.2d 489, supra, Lumbermens Mut. Ins. Co. v Lumber Mut. Ins. Co., 148 A.D.2d 328, 329), and we perceive no reason to reach a different conclusion for the language used in the subject policy.
Accordingly, we modify the order to grant partial summary judgment declaring that the policy exclusion asserted as a basis for defendant's disclaimer does not apply to the third-party action for contribution asserted against plaintiffs.