Torto, New York, for appellant.
Hurwitz & Fine, P.C., Buffalo (Steven E. Peiper of
counsel), for respondents.
Friedman, J.P., Sweeny, Richter, Manzanet-Daniels, Kapnick,
Supreme Court, New York County (Cynthia S. Kern, J.), entered
on or about September 10, 2015, which denied plaintiff's
motion for summary judgment declaring that defendants are
primary insurers of the parties' mutual insured and are
responsible for reimbursing plaintiff in connection with the
underlying litigation against the mutual insured, and granted
defendants' motion for summary judgment declaring that
they are not obligated to defend or indemnify the insured in
the underlying action or to reimburse plaintiff in connection
therewith, and sua sponte dismissed the complaint,
unanimously modified, on the law, to reinstate the complaint,
and to declare that defendants have no duty to reimburse
plaintiff in the underlying litigation, and otherwise
affirmed, without costs. The Clerk is directed to enter
Country-Wide Insurance Company, issued a "Truckers
Policy" to Truck-Rite Distributions Systems Corp.
(Truck-Rite) with a $1, 000, 000 per-accident coverage limit.
Defendant Excelsior Insurance Company issued a commercial
general liability policy to Truck-Rite that contained several
exclusions. Pursuant to the "Aircraft, Auto or
Watercraft" provision, the Excelsior policy excluded
coverage for bodily injury "arising out of" the
use, including loading and unloading, of autos operated by or
rented or loaned to Truck-Rite. "Auto" was defined
in the policy as "a land motor vehicle, trailer or
semitrailer designed for travel on public roads."
employee of Truck-Rite, while unloading a trailer owned by R
& L Carriers, Inc. (R & L) and leased to Truck-Rite,
was injured while unloading material from inside a shipping
trailer onto an attached lift gate. The lift gate failed,
causing the employee to fall. The employee commenced an
action to recover for personal injuries against R & L,
which in turn commenced a third-party action against
Truck-Rite for, inter alia, contractual and common-law
indemnification. The underlying action and third-party action
ultimately settled, with Truck-Rite paying $785, 000 toward
the settlement. Plaintiff herein, which provided Truck-Rite
with a defense and paid the settlement amount on its behalf,
now seeks reimbursement from defendants.
exclusions are subject to strict construction and must be
read narrowly, and any ambiguities in the insurance policy
are to be construed against the insurer. However, unambiguous
provisions of insurance contracts will be given their plain
and ordinary meaning" (Scottsdale Indem. Co. v
Beckerman, 120 A.D.3d 1215, 1218-1219 [2d Dept 2014],
lv denied 24 N.Y.3d 912');">24 N.Y.3d 912  [internal quotation
marks and citations omitted]).
the context of a policy exclusion, the phrase arising out of
is unambiguous, and is interpreted broadly to mean
originating from, incident to, or having connection
with'" (id. at 1219, quoting Maroney v
New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 472
). To determine the applicability of an "arising
out of" exclusion, the Court of Appeals had adopted a
"but for" test (see Mount Vernon Fire Ins. Co.
v Creative Hous., 88 N.Y.2d 347, 350 ). This test
is defined as follows:
"[I]f the plaintiff in an underlying action or
proceeding alleges the existence of facts clearly falling
within such an exclusion, and none of the causes of action
that he or she asserts could exist but for the existence of
the excluded activity or state of affairs, the insurer is
under no obligation to defend the action"
(Scottsdale Indem. Co., 120 A.D.3d at 1219, citing
Mount Vernon Fire Ins. Co. v Creative Hous., 88
N.Y.2d at 350-52; U.S. Underwriters Ins. Co. v Val-Blue
Corp., 85 N.Y.2d 821, 823 ).
the underlying plaintiff's accident occurred while he was
unloading material from a shipping trailer, an activity
clearly encompassed by the exclusion. The fact that his
injury was allegedly caused by the defective nature of the
trailer lift does not remove the injury from the policy
exclusion. "[T]he focus of the inquiry is not on the
precise cause of the accident but the general nature of the
operation in the course of which the injury was
sustained'" (Regal Constr. Corp. v National
Union Fire Ins. Co. of Pittsburgh, Pa., 15 N.Y.3d 34, 38
, quoting Worth Constr. Co., Inc. v Admiral Ins.
Co., 10 N.Y.3d 411, 416 ). "[T]he phrase
arising out of'... requires only that there be some
causal relationship between the injury and the risk for which
coverage is provided" (Dzielski v Essex Ins.
Co., 90 A.D.3d 1493, 1495 [4th Dept 2011] [dissenting