Calendar Date: November 18, 2019
Litchfield Cavo LLP, New York City (Dana M. Ricci of
counsel), for appellant.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany
(Donald P. Ford Jr. of counsel), for George B. Henderson and
Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls
(Thomas R. Davis of counsel), for Charles Henderson and
Before: Garry, P.J., Mulvey, Aarons and Colangelo, JJ.
from an order and judgment of the Supreme Court (Platkin,
J.), entered June 1, 2018 in Albany County, which, among
other things, granted defendants' motions for summary
judgment dismissing the complaint.
George B. Henderson owns defendant Henderson Farms
(hereinafter the farm). While a tractor was being unloaded
from the back of a flatbed truck on the farm, the tractor
rolled over George Henderson's son, defendant Charles
Henderson, causing severe injuries. Charles Henderson and his
spouse, defendant Heather Henderson, subsequently commenced a
personal injury action against George Henderson, the farm and
which had issued a business automobile insurance policy to
George Henderson that was in effect on the date of the
incident, commenced this action seeking a declaration that it
is not obligated to defend or indemnify George Henderson or
the farm in the personal injury action. Following joinder of
issue, George Henderson and the farm moved for summary
judgment dismissing the complaint and seeking a declaration
that plaintiff must defend and indemnify them in the
underlying action. Charles Henderson and his spouse
cross-moved for the same relief. Plaintiff cross-moved for
summary judgment on its complaint. Supreme Court granted
defendants' motions, dismissing the complaint and
declaring that plaintiff must defend and indemnify George
Henderson and the farm, and denied plaintiff's cross
motion. Plaintiff appeals.
Court properly granted defendants' motions for summary
judgment, as plaintiff is obliged to defend George Henderson
and the farm against allegations of negligence resulting from
use of the flatbed truck. "[A]n insurance company's
duty to defend is broader than its duty to indemnify. Indeed,
the duty to defend is exceedingly broad and an insurer will
be called upon to provide a defense whenever the allegations
of the complaint suggest a reasonable possibility of
coverage" (Automobile Ins. Co. of Hartford v
Cook, 7 N.Y.3d 131, 137  [internal quotation
marks, ellipsis and citation omitted]; see Continental
Cas. Co. v Rapid-American Corp., 80 N.Y.2d 640, 648
). To avoid its duty to defend, an insurer must show,
"as a matter of law[, ] that there is no possible
factual or legal basis on which the insurer might eventually
be held to be obligated to indemnify the insured under any
provision of the insurance policy" (Servidone
Constr. Corp. v Security Ins. Co. of Hartford, 64 N.Y.2d
419, 424  [internal quotation marks, brackets and
citation omitted]). If anything within the "four corners
of the complaint suggest[s]... a reasonable possibility of
coverage," the insurer must defend, even though it may
not ultimately be bound to pay because the insured may not be
liable (Continental Cas. Co. v Rapid-American Corp.,
80 N.Y.2d at 648; see Fitzpatrick v American Honda Motor
Co., 78 N.Y.2d 61, 65-66 ; State of New York v
Flora, 173 A.D.3d 1402, 1403-1404 ; Village of
Brewster v Virginia Sur. Co., Inc., 70 A.D.3d 1239, 1241
to the Vehicle and Traffic Law, "[e]very owner of a
vehicle used or operated in this state shall be liable and
responsible for... injuries to person or property resulting
from negligence in the use or operation of such vehicle, in
the business of such owner or otherwise, by any person using
or operating the same with the permission, express or
implied, of such owner" (Vehicle and Traffic Law §
388 ). Courts have interpreted Vehicle and Traffic Law
§ 388 (1) to mean that "[a] vehicle owner is
vicariously liable for the negligence of anyone operating his
or her vehicle with express or implied permission"
(New York Cent. Mut. Fire Ins. Co. v Nationwide Mut. Ins.
Co., 307 A.D.2d 449, 450 ; see Argentina v
Emery World Wide Delivery Corp., 93 N.Y.2d 554, 558
; Lopes v Bain, 82 A.D.3d 1553, 1554 ).
Vehicle and Traffic Law § 388 (4) states that
"[a]ll... policies of insurance issued to the owner of
any vehicle... shall contain a provision for indemnity or
security against the liability and responsibility provided in
this section" (see 11 NYCRR 60-1.1 [a]). Based
on this express requirement on insurers, policies that leave
gaps in coverage "violate New York law and public
policy" (Royal Indem. Co. v Providence Washington
Ins. Co., 92 N.Y.2d 653, 657 ), rendering them
unenforceable as to those gaps (see Progressive Cas. Ins.
Co. v Baker, 290 A.D.2d 676, 677-679 ). "The
policy of insurance issued must be as broad as the insured
owner's liability for use of the vehicle by the owner or
anyone using the vehicle with his [or her] permission"
(Rosado v Eveready Ins. Co., 34 N.Y.2d 43, 49 
[citations omitted]; see Matter of Liberty Mut. Ins. Co.
[Hogan], 82 N.Y.2d 57, 61-62 ).
and unloading of a covered vehicle constitute "use or
operation" pursuant to Vehicle and Traffic Law §
388 (1) (see Argentina v Emery World Wide Delivery
Corp., 93 N.Y.2d at 558; Smith v Zink, 274
A.D.2d 885, 886 ), and a vehicle does not have to be in
motion to be in "use or operation" (see
Argentina v Emery World Wide Delivery Corp., 93 N.Y.2d
at 559-560). To that end, this Court has previously held that
a disabled vehicle was in "use or operation"
(see Trentini v Metropolitan Prop. & Cas. Ins.
Co., 2 A.D.3d 957, 958 , lv dismissed 2
N.Y.3d 823 ) and that an injury partially caused by a
negligently parked, unoccupied vehicle was related to the
vehicle's "use or operation" (see Bouchard
v Canadian Pac., 267 A.D.2d 899, 902 ).
George Henderson was the named insured on the policy issued
by plaintiff and the flatbed truck was listed as a covered
automobile. The record demonstrates that Charles Henderson
was injured while he, George Henderson and another person
were unloading a tractor from the flatbed truck. Supreme
Court correctly determined that the employment status of
Charles Henderson and the other individual was not germane,
as they were unloading a covered vehicle with the permission
of the named insured (see Argentina v Emery World Wide
Delivery Corp., 93 N.Y.2d at 558).  Plaintiff's
attempt to limit its "use" liability through policy
language would violate its obligation under Vehicle and
Traffic Law § 388 (4) (see Rosado v Eveready Ins.
Co., 34 N.Y.2d at 49). The facts, as pleaded in the
complaint and elaborated upon during discovery, suggest
"a reasonable possibility of coverage"
(Continental Cas. Co. v Rapid-American Corp., 80
N.Y.2d at 648). Specifically, George Henderson loaded and
secured the tractor on the flatbed truck, drove the flatbed
truck to the farm, rolled the bed back and tilted it, and
operated the winch that was supposed to be holding the
tractor in place. He also regularly requested or allowed
Charles Henderson and the other individual to unload
machinery from the flatbed truck. Charles Henderson asserted
that, due to George Henderson not paying attention, the winch
cable went slack, causing it to release from the tractor and
allow the tractor to roll. George Henderson is potentially
both directly and vicariously liable for negligence in the
personal injury action (see Argentina v Emery World Wide
Delivery Corp., 93 N.Y.2d at 558; New York Cent.
Mut. Fire Ins. Co. v Nationwide Mut. Ins. Co., 307
A.D.2d at 450), and there is prima facie "reasonable
possibility of coverage" (Automobile Ins. Co. of
Hartford v Cook, 7 N.Y.3d at 137; see Continental
Cas. Co. v Rapid-American Corp., 80 N.Y.2d at 648).
Thus, plaintiff is obliged to defend George Henderson and the
farm in the underlying action. Whether plaintiff must
indemnify them depends on whether George Henderson is found
liable for negligence - either by his own actions or by the
actions of those who were operating the vehicle with his
permission - in the personal injury action (see
Nationwide Mut. Ins. Co. v Dennis, 14 A.D.2d 188,
188-189 , lv denied 10 N.Y.2d 708');">10 N.Y.2d 708 ).
on our conclusion that plaintiff is obliged to defend under
the policy because the incident involved use of the flatbed
truck as a covered automobile by a named insured, we need not
address the issue of whether the tractor ...