I concur in the majority opinion, but I would decide the issue concerning the conflict between section 388 of the Vehicle and Traffic Law and the regulation of the Insurance Department (see 11 NYCRR 60.2 [c]), it being, in my opinion, a matter of public policy and necessity.
The section of the Vehicle and Traffic Law, as applicable here, provides that whenever a combination of vehicles is used, by attachment or tow, the owners thereof shall be jointly and severally liable.
The regulation provides that an owner’s policy of liability insurance may contain an exclusion: “(c) While the motor vehicle is used for the towing of any trailer or semitrailer owned or hired by the insured and not covered by like insurance with the insurer; or while any trailer or semitrailer covered by the policy is used with any motor vehicle owned or hired by the insured and not covered by like insurance with the insurer.”
Applying the rule of statutory construction, the statute must control as against a conflicting regulation, such as here. The Vehicle and Traffic Law is for the protection of the traveling-public and controls the ownership and operation of all forms of vehicles on the highways of this State. The regulation leaves open the possibility of protracted litigation, the statute by its application eliminates this possibility. The necessity for a decision is further demonstrated when consideration is given to the operation of tandem vehicles (a combination of three) upon our State highways where there is a possibility of litigation among the three owners.
Gibson, P. J., Taylor and Aulisi, JJ., concur with Reynolds, J.; Herlihy, J., concurs in a separate opinion.
Judgment reversed, on the law and the facts, and judgment granted for appellant, with costs. Settle order.