As this court decided when the matter was before us on a prior occasion, a specific provision of the insurance policy issued to the owner of the trailer named and included the driver of the tractor as an additional insured (Aetna Cas. & Sur. Co. v Merchants Mut. Ins. Co., 78 AD2d 176, 178). The language of the exclusion contained in that policy quoted by the majority is not applicable to this driver, since as driver of the tractor, he has not hired and does not own the trailer (see General Mut. Ins. Co. v Sun Ins. Co., 24 AD2d 135). Moreover, the very regulation which enumerates the permissible exclusions in an “owner’s policy of liability insurance” does not include an exclusion of the driver as an insured (11 NYCRR 60.2). Thus, if we were to read such an exclusion into the policy, it would be “without the approval or protection of the law” (Rosado v Eveready Ins. Co., 34 NY2d 43, 48).
Consequently, upon the theory of implied indemnification, a cause of action exists in favor of plaintiff against defendant by virtue of the specific provisions of the policy of insurance issued upon the trailer, and defendant’s motion for summary judgment should not have been granted (Aetna Cas. & Sur. Co. v Merchants Mut. Ins. Co., supra). Plaintiff’s cross motion for summary judgment should be granted declaring defendant liable to indemnify plaintiff for a ratable share of the claim settled by plaintiff according to the respective insurer’s total liability exposure for a group of claims arising from a single accident (see Travelers Ins. Co. v General Acc., Fire & Life Assur. Corp., 28 NY2d 458).
Mahoney, P. J., Weiss and Levine, JJ., concur with Casey, J.; Kane, J., dissents in an opinion.
Order affirmed, with costs.