While questions of indemnity and the duty to defend often involve issues of "notice” and prompt disclaimer as per the policy provisions, there are also cases which involve the fundamental question of when the policy extends coverage. The present case falls into this latter group.
The policy herein extends coverage as to the operation of nonowned vehicles but only as an excess carrier. In the case of Matter of Allcity Ins. Co. v Sioukas (51 AD2d 525, affd on opn below 41 NY2d 872) it was noted that a notice of disclaimer was not necessary unless it was first established that the facts invoking policy coverage were in existence. Accordingly, a mere notice of suit or of accident would not invoke a right on the part of the insured to coverage as to an excess carrier. The present record does not contain facts which would establish a reasonable necessity to disclaim coverage in order to protect against established rights of an insured or the public.
It should be observed that it is the understanding of all of the parties that the cross claim of State Farm Mutual Automobile Insurance Co. repudiating coverage by it as to Mark Larson was not considered and, accordingly, not decided. From the present record there are factual issues yet to be resolved between the parties and which may be determinative of the rights and responsibilities of the present litigants.
The judgment should be reversed, and judgment entered in favor of the appellant to the extent of declaring that upon the present record it is not now required to defend Mark Larson or provide coverage for the 1970 accident, without prejudice to such further proceedings as the defendants might be advised to bring upon the basis of subsequent events.
Mahoney, P. J., and Mikoll, J., concur with Sweeney, J.; Larkin and Herlihy, JJ., dissent and vote to reverse in an opinion by Herlihy, J.
Judgment affirmed, with costs.