Country-Wide Insurance v. Wagoner

Simons, J. (dissenting).

The only issue on which the majority disagree with Special Term is over the application of proceeds payable under the respondent Aetna’s policy which insured the vehicle of Donald Wagoner’s father, Clifford.

Appellant Country-Wide Insurance insured the motorcycle which Daniel was driving at the time of the accident and if the vehicle were an ordinary car with four wheels, appellant’s policy concededly would be primary and Aetna’s policy excess. The majority, construing the contract, believe that Aetna intended to increase its exposure in the case of accidents involving nonowned motorcycles over what it would have in the case of nonowned automobiles. Thus, under the circumstances of this case, they construe Condition 6 of the Aetna policy as an agreement by Aetna to be liable as a coinsurer with Country-Wide for injury to Country-Wide’s named insured while riding his motorcycle. I am unable to see the logic or desirability of such a construction and I prefer to rely on the determination of the Court of Appeals, made under different facts, that the contract term "automobile” in such clauses includes motorcycles (see Matter of Askey [General Acc. Fire & Life Assur. Corp.], 30 AD2d 632, affd 24 NY2d 937). Nor do I see any necessary conflict in the Special Term’s result with this court’s decision in Insurance Co. of North Amer. v Godwin (46 AD2d 154). In Godwin we were considering two policies both of which were purchased by the motorcyclist and listed him as the named insured. We applied the familiar rule that ambiguities in the policy should be construed in favor of the insured to afford him coverage. In this case there is no question of coverage for the accident. The issue is whether Aetna is a coinsurer with Country-Wide or liable for excess only. For these reasons and the reasons stated in the opinion of Special Term (88 Misc 2d 976) the order should be affirmed.

Dillon, Goldman and Witmer, JJ., concur with Carda*508mone, J. P.; Simons, J., dissents in an opinion and votes to affirm the order.

Order reversed, with costs, and permanent stay of arbitration vacated.