The Rogak Report: 1 March 2004
- NO LIABILITY COVERAGE EXISTS FOR NON-OWNED TRAILERS BEING HAULED BY
INSURED, UNLESS TRAILER ENDORSEMENT IS PART OF POLICY
Andrew Mundo Inc. v. Liberty Mut. Group, 2004 WL 352102 (1st Dept
This was a declaratory judgment action. The insured sought a
declaration that Liberty Mutual was obligated to provide defense and
indemnity to it in an underlying action for property damage sustained
by a trailer that plaintiff was hauling. Supreme Court, Bronx
County, granted Liberty's motion for summary judgment, declaring that
it is not so obligated by reason of the policy's Care, Custody or
Control exclusion. The Appellate Division affimed.
By its terms, the policy's Care, Custody or Control exclusion applies
to "[p]roperty damage to property owned or transported by the insured
or in the insured's care, custody or control." Thus, "any obligation
[Liberty] has to defend and indemnify [the insured] for property
damage is limited to vehicles that were neither owned by plaintiff
nor being transported by him or otherwise under his care, custody or
control when damaged. Since the trailer in question, which is owned
by the subrogor of the plaintiff in the underlying action, was under
the care, custody or control of plaintiff herein at the time of the
accident, the exclusion applies."
This conclusion "appears consistent with the policy's declarations
page, which indicates that plaintiff purchased coverage
for 'liability,' 'personal injury protection' and 'uninsured
motorists,' but not, inter alia, 'trailer interchange comprehensive
coverage,' 'trailer interchange collision coverage,' 'physical damage
comprehensive coverage' or 'physical damage collision coverage.' As
defendant maintains, the policy is for 'liability,' not 'collision.'"
The Court held that it "would reach the same result, i.e., a
declaration that defendant is not obligated to defend or indemnify
plaintiff in the underlying action, even if we were to construe
defendant's disclaimer as based exclusively, rather than
additionally, on the claim that the damaged trailer is not the
trailer listed on the policy's schedule of covered autos. In this
regard, the disclaimer states that the VIN number of the trailer
involved in the accident is 2A5WF8B4PTO53386, whereas the policy
lists the covered trailer's VIN number as 2A9SWF8BOPT053392.
Plaintiff contends that the two numbers are close enough to permit an
inference that the difference is due to a typographical error. On the
present record, there is nothing to support such inference and no
further inquiry is warranted."
Comment: Put simply, if the insured is hauling a trailer owned by
someone else, and that trailer is damaged while in the care custody
and control of the insured, the insured has no liability coverage in
a suit by the trailer's owner. Unless, of course, the insured has
purchased the trailer liability endorsements.