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Driver is not listed to operate vehicle

In 1958, a company obtained an insurance policy for a truck that was routinely operated in the course of their business. On day during the coverage of this policy, the Queens business owner’s nephew was driving the truck and caused a commercial truck accident. The insurance company stated that they did not feel that they should be responsible for the accident because the nephew was not specifically listed to drive the vehicle. There is no argument that the nephew was at fault in the accident itself.

The Manhattan company owner argues that the policy itself clearly states that it covers any person who is driving the vehicle. The issue of if the owner had given permission to his nephew to drive the truck was not addressed during the trial of the issue. The policy states that it will insure not only the company owner, but also, any “person while using the vehicle with his permission.” The court points out that “the duty to defend is broader than the duty to pay.” Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 154, 77 N.E.2d 131, 133.

The court points out that the entire issue of whether or not the insurance company is liable for the compensation that was awarded to the injured parties in this case would have been moot if the insurance company had simply represented the nephew in the first place. If they had done that, then their rights as well as the nephew’s rights would have been protected. Since they did not, the injured parties are allowed by law to seek compensation from the insurance company since the nephew either was not able to pay or simply did not pay the compensation ordered by the court.

The insurance company asked if in alternative, they could receive summary judgment in their favor which must be denied. There is only one disputed issue of fact involved in this case. It is whether or not the owner of the company gave permission to the nephew to drive the truck. A presumption is made that the nephew was operating the truck with the permission of the owner. The insurance company admits that they hold the insurance policy on the truck and that the company owns the truck.

The order of the court in this case is that a summary judgment cannot be approved and the case is reserved for trial.

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