INJURY FROM TRUCK DAMAGE TO SIDEWALK HELD NOT WITHIN "AUTOMOBILE" EXCLUSION

Commercial General Liability	Automobile Liability
Automobile Exclusion	Proximate Cause of Loss

A woman fell on a defective sidewalk that had been broken as a result of the operation of a truck belonging to the insured. The complaint stated that the heavy truck was driven upon the sidewalk to pick up and empty, mechanically, a trash receptacle belonging to a restaurant. The broken sidewalk that resulted allegedly caused the woman to fall and injure herself.

The insured's general liability insurer sought summary judgment declaring that it had no obligation to defend because of its automobile exclusion.

The insured's automobile insurer also sought summary judgment to declare that it was not obligated to defend and indemnify the insured in the action brought by the injured woman. The insurer asserted that the policy did not apply when the operation of a vehicle or its condition was not the proximate cause of an injury. It contended that the injury in this case did not result from the use of the truck. The general liability insurer argued that the injury "originated from and was connected with" the use of the truck.

The court noted that language of the pertinent insuring agreement in the automobile policy and that of the quoted exclusion in the general liability policy was very similar, the clear intent being to strengthen the line of demarcation for occurrences within the scope of one division of insurance and those contemplated by the other, and to minimize the possibility of no coverage at all.

The court concluded that it cannot be said that the operation of the truck was the proximate cause of the injury. It said that the automobile insurer might be required to pay for damages to the sidewalk, but that it was not required to defend against a claim by a person later injured as a result of such alleged damage. That obligation was placed on the general liability insurer.

(JEFFERSON INS. CO. OF NY, Plaintiff v. EMPIRE MUTUAL INS. CO., Defendant. NY Supreme Court, New York County. 202 N.Y.L.J., No. 31, p. 17. August 15, 1989. CCH 1989-90 Fire and Casualty Cases, Paragraph 2040.)