State Farm Fire and Casualty Co. v. Wolford

Full title: STATE FARM FIRE AND CASUALTY COMPANY, Respondent, v. TRENT E. WOLFORD…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jan 24, 1986

116 A.D.2d 1011 (N.Y. App. Div. 1986)

Opinion

January 24, 1986

Appeal from the Supreme Court, Genesee County, Flaherty, J.

Present — Dillon, P.J., Denman, Green, O'Donnell and Schnepp, JJ.

Judgment unanimously affirmed, without costs. Memorandum: This declaratory judgment action was instituted to determine whether plaintiff is obligated to defend and/or indemnify defendant Mark Platten in an underlying negligence action in which Platten is a defendant. Wolford, plaintiff in the underlying action, contends on appeal that the issue of liability should await a determination in the primary action. We disagree. A declaratory judgment action is an appropriate remedy where resolution of the matter in dispute is determinative of the insurer's liability to defend and indemnify its insured for potential judgments (see, Prashker v United States Guar. Co., 1 N.Y.2d 584, 591; Hollander v Nationwide Mut. Ins. Co., 60 A.D.2d 380, lv denied 44 N.Y.2d 646).

In the underlying negligence action, Wolford alleged a cause of action against Mark Platten for wrongful entrustment of his automobile to his brother John Platten, for which Mark Platten seeks to have his homeowner's insurance carrier defend and indemnify. We find that the accident arose out of the operation of a motor vehicle by John Platten, who, because he resided with his brother at the time of the accident, is within the policy's definition of the term "insured". Special Term properly declared that the plaintiff is not obligated to defend and indemnify Mark Platten in the underlying action because a provision in his homeowner's policy specifically excludes coverage for "bodily injury or property damage arising out of ownership, maintenance, use * * * [of] a motor vehicle owned or operated by, or rented or loaned to any insured" (see, Matter of Duncan Petroleum Transp. v Aetna Ins. Co., 96 A.D.2d 942, affd 61 N.Y.2d 665; see also, Ruggerio v Aetna Life Cas. Co., 107 A.D.2d 744).