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SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY 1968.NY.44072 <>; 296 N.Y.S.2d 464; 58 Misc. 2d 530 December 26, 1968 LAURENCE LALOMIA ET AL., PLAINTIFFS,v.BANKERS & SHIPPERS INSURANCE COMPANY ET AL., DEFENDANTS Shayne, Dachs, Weiss, Kolbrenner & Levy (Peter Kolbrenner of counsel), for plaintiffs. Gill & Sheehan (James J. Gill of counsel), for Maryland Casualty Company. Walter C. Marshall for Liberty Mutual Ins. Co. John J. Kennelly for Joseph Frascella, defendant. Curtis, Hart & Munro (Reid A. Curtis of counsel), for Bankers & Shippers Insurance Company, defendant. Marvin, Montfort, Healy, McGuire & Salley (E. Richard Rimmels, Jr., and Joseph C. Henney of counsel), for Insurance Company of North America, defendant. Carl V. Cafran for Daniel Maddock, defendant. John P. Cohalan, Jr., J. Author: Cohalan

John P. Cohalan, Jr., J.

Author: Cohalan

 This is an action for a declaratory judgment. Plaintiffs seek to establish that the individual defendants (Maddock and Frascella) or either of them maintained on June 5, 1966 a policy of insurance covering them for an unusual and fatal accident that happened on that day.

Michael Maddock, deceased, a 12-year-old boy, came to his death, -- as did Jean Lalomia, plaintiff's intestate -- when a contraption being operated by the boy, made contact with a car driven by Mrs. Lalomia. She thereupon lost control of her vehicle and crashed into an obstruction as a result of which she lost her life. Other plaintiffs then in the car sustained bodily injury.

The contraption the Maddock boy was propelling consisted of a conventional American bicycle from which had been removed the various operational parts, i.e., the pedals, one sprocket, the chain and coaster brake. In their place a lawn mower gasoline engine of 3 1/2 H. P. had been substituted. The only way to stop the engine was to short the sparkplug.

The accident occurred on a public highway about three blocks from the boy's home.

In the course of the trial the testimony revealed that about two or three weeks before the fatality, Daniel Maddock and Joseph Frascella, parents respectively of Michael Maddock and Joseph Anthony Frascella (himself a 12-year-old boy) were together in a body at a time when young Frascella negotiated a transfer of possession of the contraption to young Maddock. As consideration a $10 bill passed hands which the elder Frascella insisted his son return. The Maddocks removed the cannibalized bicycle in the elder Maddock's truck. And in the interim before the accident, possession of the device remained with the Maddocks.

The interest (or lack of interest) of the defendant insurance companies is factually as follows: (all the following automobile policies were in force and effect on June 5, 1966).

1. Bankers and Shippers Insurance Co. (B&S) issued two policies to Daniel Maddock: (a) A combined automobile family policy (CAF) on an Opel sedan specified in the declaration; and (b) A combination automobile policy (CA) on a 1964 Dodge truck as the only specified declared vehicle.

2. Maryland Casualty Co. (Maryland) issued three policies to Frascella and his wife, two of which covered automobiles specifically: (a) policy covering a one-half ton express truck and (b) policy covering a 1961 Austin Healey Sprite convertible and a 1958 four-door Chevrolet sedan.

3. Liberty Mutual Insurance Co. (Liberty) issued a policy to the Lalomias, containing the uninsured motorist endorsement (Insurance Law, § 167, subd. 2-a) by which it could conceivably become liable if no recourse could be had to any other existing automobile policy.

Two homeowners' policies (HOP) also figure in the action. One was issued by Maryland to the Frascellas for their dwelling premises at North Babylon, New York. The other was issued by Insurance Co. of North America (INA) to Daniel Maddock. Both were in effect on June 5, 1966.

From this congeries of policies we are asked to find one or more which covered a defendant and gave protection to the plaintiffs as a result of the tragic accident.

The parties stipulated that the proof to be adduced would be limited to a discussion of three relevant issues. (1) Is this device covered under any automobile insurance policy that was in force and effect at the time of this occurrence?

(2) Is this incident covered under homeowner's policy of the Insurance Company of North America, HOP-46265, and/or the Maryland Casualty Company homeowner's policy No. 65-613685, bearing in mind that the incident occurred at the intersection of Grenada Parkway and Spruce Place, in the community of Lindenhurst, on June 5, 1966?

(3) The third question is, the ownership of the two-wheeled device which was being operated by Michael Maddock on June 5, 1966.

For convenience the court will deal with the questions in the order of (1), (3) and (2).

As to the automobile policies issued by B&S and Maryland, plaintiffs concede that the respective CAF and CA instruments are identical. They take issue, however, with the definition given in the policies of "automobile". In CAF it is defined as a "four wheel private passenger, station wagon or jeep type automobile", and in CA "a private passenger, station wagon or jeep automobile" and also includes under coverage A, B and Division 1 of coverage C "any automobiles, the purpose and use of which are stated in the declaration as 'pleasure and business'".

Plaintiffs urge that by attempting to define "automobile" the companies have gone beyond the broader verbiage employed in the New York statutes establishing minimum provisions, and have thus written in limitations not present in the law.

Thus they point to section 167 of the Insurance Law wherein reference is made "to motor vehicles or of any vehicle as defined in section 59 (now § 388) of the Vehicle and Traffic Law" (hereafter V&T Law). Section 388 at subdivision 2 says: "'vehicle' means a 'motor vehicle', as defined in section one hundred ...

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