Walter S. Kozdranski Co., Inc. v Jamestown Mutual Insurance Company Record on Appeal
Public Court Documents
January 1, 1973
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Brief Collection, LDF Court Filings. Walter S. Kozdranski Co., Inc. v Jamestown Mutual Insurance Company Record on Appeal, 1973. b84a9329-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ee002271-12e7-48d8-b4c6-8a636eec405c/walter-s-kozdranski-co-inc-v-jamestown-mutual-insurance-company-record-on-appeal. Accessed October 12, 2025.
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State o f New York.
WALTER S. KOZDRANSKI CO., Inc., and DAVID E. CHAPMAN,
Plaintiff s-Respondents,
vs.
JAMESTOWN MUTUAL INSURANCE COMPANY,
Defendant-Appellant-Respondent,
vs.
CAROLYN S. JENSEN, as Administratrix of the Estate of
W alter M. Jensen, Deceased,
Defendant-Respondent,
GROSS PLUMBING & HEATING CO., Inc.,
Defendant-Appellant,
and
PUBLIC SERVICE MUTUAL INSURANCE CO.,
Defendant-Appellant-Respondent.
RECORD ON APPEAL.
Dixon, DeMarie & Szymoniak,
Attorneys for Defendant-Appellant, Gross Plumb
ing & Heating Co., Inc., and Defendant-
Appellant-Respondent, Public Service Mu
tual Insurance Co.,
610 Walbridge Building,
Buffalo, N. Y. 14202
Miles, Cochrane, Grosse, Rossetti & Harper,
Attorneys for Defendant-Appellant-Respondent,
Jamestown Mutual Insurance Company,
1560 Statler Hilton Hotel,
Buffalo, N. Y. 14202
R ice, Rice, Hustleby &_Chace,
Attorneys for Plaintiff s-Respondents,
Brownstein, Canale, Madden, Burke & Siegel,
Of Counsel,
530 Walbridge Building,
Buffalo, N. Y. 14202
Grossman & Levine,
Attorneys for Defendant-Respondent, Carolyn S.
Jensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased,
8612 Buffalo Avenue,
Niagara Falls, N. Y. 14304
The R eporteb Company, .Inc., New York, N. Y. 10007— 212 732-6978— 1973
(1589)
Index to Record in Coart of Appeals.
Page
Statement Pursuant to Civil Practice Law and Rules,
Section 5531 ........ ......................... ........................ 65
Notice of Appeal to the Court of Appeals by De
fendant Jamestown Mutual Insurance Com
pany, From an Order Entered December 12,
1972, Amending a Previous Order Entered
November 30, 1972 ...................................... ....... 67
Notice of Appeal to the Court of Appeals by De
fendant Public Service Mutual Insurance Com
pany, From an Order Entered December 12,
1972, Amending a Previous Order Entered No
vember 30, 1972 .................................................... 70
Notice of Appeal to Court of Appeals by Defend
ant Public Service Mutual Insurance Com
pany, From an Order of Reversal Entered
November 30, 1972 ............................................... 73
Notice of Appeal to the Court of Appeals by De
fendant Gross Plumbing & Heating Co., Inc.,
From an Order of Reversal Entered Novem
ber 30, 1972 ............................................................. 74
Notice of Appeal to the Court of Appeals by De
fendant Jamestown Mutual Insurance Com
pany, From an Order of the Appellate Divi
sion Denying Motion to Amend Opinion ____ 75
Order of Reversal Appealed From, Entered No
vember 30, 1972 ............................. 77
Order Appealed From Amending Opinion ............. . 79
11.
Page
Order of the Appellate Division Denying Motion of
Defendant Jamestown Mutual Insurance Com
pany, to Amend Opinion ............ ................ — 81
Opinion of the Appellate Division, Fourth Depart
ment .... - ................ —.... — .... -............................. 83
Opinion of the Appellate Division, Fourth Depart
ment ........................................................................ 90
Order to Show Cause to Amend Opinion ........... . 97
Affidavit of John F. Canale in Support of Motion to
Amend Opinion .......... ................... -............. -........ 99
Notice of Motion by Defendant Jamestown Mutual
Insurance Company to Amend Opinion ........... 102
Affidavit of Raymond T. Miles in Support of Motion
of Jamestown Mutual Insurance Company to
Amend Opinion .......... ........ — ................ .......... 105
Affidavit of John F. Canale in Opposition to Motion
of Defendant Jamestown to Amend Opinion 111
Certification Pursuant to Rule 2105 ---- ------ ----------- 113
INDEX.
PAGE
Amended Answer of Defendant Jamestown Mutual
Insurance Company .............................. 17
Exhibit Annexed to Amended Answer:
“ A”—-Complaint in action of Carolyn S. Jensen, as
Administratrix ............... 22
Answer of Defendant Carolyn S. Jensen, as Adminis
tratrix of the Estate of Walter M. Jensen, Deceased 2(1
Answer of Defendants Gross Plumbing & Heating Co.,
Inc. and Public Service Mutual Insurance Co., Tnc. . . 27
Answer of Defendant Jamestown Mutual Insurance
Company ............... 16
Complaint ..................................... 11
Judgment Appealed From ................................................. 7
Memorandum ................................................. 9
Notice of Appeal of Defendant Jamestown Mutual
Insurance Company ................................... 3
Notice of Appeal of Plaintiffs ..................................... 5
Proceedings, April 19, 1972 ...................................... 30
Reply of Defendant Public Service Mutual Insurance
Company ............................................................ 28
Statement Pursuant, to Civil Practice Law and Rules
Section 5531 .................................................... 1
Stipulation ............................................................ 32
Stipulation Waiving Certification ........................... 64
Summons ................................................. 10
T estim o n y .
Witnesses for Plaintiff;
Chapman, Donald E.
Direct Examination........................................ 33
Cross Examination.......................................... 40
Re-direct Examination ........................ 41
Re-cross Examination ........................................ 42
II.
PAGK
Guthrie, Anthony E.
Direct Examination ......................................... 57
Cross Examination .................... ................... 59
Witness for Defendant Jamestown
Mutual Insurance Company:
Damon, Cecil
Direct Examination ......................................... 52
Cross Examination ............ ............................... 56
E x h ib it s .
(Not printed.)
Plaintiff’s Exhibits:
Exhibit No. 1—Policy No. OLA-24864. Received in evi
dence at page 51.
Exhibit No. 2—-Policy No. OLA-24865. Received in evi
dence at page 51.
Exhibit No. 3— Correspondence from the Billings Insurance
Agency. Received in evidence at page 49.
Exhibit No. 4— Correspondence from the Jamestown
Mutual Insurance. Received in evidence at page 49.
Exhibit No. 5—Original Report of Accident from the
Billings Agency to Jamestown Mutual. Received in
evidence at page 49.
Exhibit No. 6— Public Service Mutual Insurance Company
policy. Received in evidence at page 51.
Defendant’s Exhibit:
Exhibit A—Communication from Billings Insurance to
the Jamestown Mutual Insurance Company. Received in
evidence at page 54.
STATE OF NEW YORK
Supreme (Emtrt
A ppellate D ivision— F ourth J udicial D epartm ent
-------------o--------------
W ALTER S. KOZDRANSKI CO., INC. and
DAVID E. CHAPMAN,
Plaintiff s-Respondents,
vs.
JAMESTOWN MUTUAL INSURANCE COMPANY,
Defendant-Appellant,
CAROLYN S. JENSEN, as Administratrix of the Estate
of W ALTER M. JENSEN, Deceased; GROSS PLUMB
ING & HEATING CO., INC.; and PUBLIC SERVICE
MUTUAL INSURANCE CO.,
Defendants-Respondents.
--------- — o-------- -—
Statement Pursuant to Civil Practice Law and
Rules Section 5531.
1. The index number of the above case in the court
below is 18880.
2a. The full names of the original parties are set forth
in the original title of this lawsuit as follows;
Walter S. Kozdranski Co., Inc., Plaintiff,
vs.
Jamestown Mutual Insurance Company; Carolyn S.
Jensen, as Administratrix of the Estate of Walter
M. Jensen, Deceased; Gross Plumbing & Heating Co.,
Jnc.; and Public Service Mutual Insurance Co.,
Defendants.
2
Statement Pursuant to Civil Practice Law and
Rules Section 5531.
2b. Donald E. Chapman was added as a party plaintiff
by motion made on April 19, 1972, prior to the giving of
testimony herein.
3. The lawsuit was commenced in the Supreme Court,
Niagara County.
4. The lawsuit was commenced March 11, 1972, and the
answer of the defendant, Jamestown Mutual Insurance
Company, was served March 24, 1972. The amended an
swer of the defendant, Jamestown Mutual Insurance Com
pany, was served on March 29, 1972. No records are avail
able to indicate when the answers of the other parties to
the complaint were served.
5. The action is one for a declaratory judgment that
two policies of insurance issued by Jamestown Mutual
Insurance Company to the plaintiff, Walter S. Kozdranski
Co., Inc., afforded coverage to the plaintiff in a lawsuit
brought against the plaintiff in the Supreme Court, Niagara
County by Carolyn S. Jensen, as Administratrix of the
Estate of Walter M. Jensen, Deceased. The plaintiff,
Walter S. Kozdranski Co., Inc., further sought in the
declaratory judgment action an order requiring Jamestown
Mutual Insurance Company to bring in Donald E. Chap
man as a party defendant in the lawsuit for damages in
the Supreme Court, Niagara County, and for a direction
that said Chapman, when brought in as a party defendant,
was entitled to the coverage of a policy issued by the
defendant, Public Service Mutual Insurance Co.
6. The appeal is from a judgment granted May 22, 1972,
entered in the office of the Clerk of Niagara County on
May 22, 1972.
7. The appendix method of appeal is not being used.
3
Notice of Appeal of Defendant Jamestown
Mutual Insurance Company.
STATE OF NEW YORK
SUPREME CO U RT— County of N iagara
-------------- o----- ----- -
W ALTER S. KOZDRANSKI CO., INC. and
DAVID E. CHAPMAN,
Plaintiffs,
vs.
JAMESTOWN MUTUAL INSURANCE COMPANY;
CAROLYN S. JENSEN, as Administratrix of the Estate
of W ALTER M. JENSEN, Deceased; GROSS PLUMB
ING & HEATING CO., INC.; and PUBLIC SERVICE
MUTUAL INSURANCE CO.,
Defendants.
Index No. 18880.
--------— o------- —
Sirs:
PLEASE TAKE NOTICE, that the defendant, James
town Mutual Insurance Company, hereby appeals to the
Appellate Division of the Supreme Court, Fourth Depart
ment, from the judgment of this Court granted May 22,
1972, and entered in the office of the Clerk of Niagara
County on the 22nd day of May, 1972, adjudging that the
defendant, Jamestown Mutual Insurance Company, is obli
gated to provide coverage to the plaintiff herein under its
general liability policy numbered GLA 24865 and not under
any other policy and further adjudging that the defendant,
Public Service Mutual Insurance Company, is not obligated
to provide coverage to any o f the parties in any claim now
4
Notice of Appeal of Defendant Jamestown Mutual
Insurance Company,
pending between or among the parties to this action, and
from each and every part of said judgment.
Dated: Buffalo, New York, May 31, 1972.
MILES, COCHRANE, CROSSE,
ROSSETTI & HARPER,
Attorneys for Defendant, Jamestown
Mutual Insurance Company,
Office and Post Office Address,
1560 Statler Hilton Hotel,
Buffalo, New York 14202,
Phone: (716) 852-3600.
To:
Rice, Rice, Hustleby & Chace,
Rrownstein, Canale, Madden, Burke
& Siege!, Of Counsel,
„ i ttorneys for Plaintiff, Koedranski,
Office and Post Office Address,
530 Walbridge Building,
Buffalo, New York 14202.
Dixon, DeMarie & Szyrnoniak,
Attorneys for Defendants, Gross Plumbing
<b Heating Co., Inc., and Public Service
Mutual Insurance Co.,
Office and Post Office Address,
610 Walbridge Building,
Buffalo, Now York 14202.
Grossman & Levine,
Attorneys for Defendant, Carolyn S. Jensen„
as Administratrix of the Estate of
Walter M. Jensen, Deceased,
Office and Post Office Address,
8612 Buffalo Avenue,
Niagara Falls, New York 14304.
Clerk of Niagara County,
Niagara County Court House,
Lockport, New York.
5
Notice of Appeal of Plaintiffs.
STATE OF NEW YORK
SUPREME COURT— C ounty of N iagara
■----------------------- o ------------- --—
W ALTER S. KOZDRANSKI CO., INC.
and DAVID E. CHAPMAN,
vs.
Plaintiffs,
.JAMESTOWN MUTUAL INSURANCE COMPANY;
CAROLYN S. JENSEN, as Administratrix of the Es
tate of W ALTER M. JENSEN, Deceased; GROSS
PLUMBING & HEATING CO., INC.; and PUBLIC
SERVICE MUTUAL INSURANCE CO.,
Defendants.
Index No. 18880.
■--------------------- - 0 ---------------------—
Sirs:
PLEASE TAKE NOTICE that the plaintiffs, Walter S.
Kozdranski Co., Ine. and David E. Chapman, and each of
them, hereby appeal to the Appellate Division of the Su
preme Court Fourth Department, from the judgment of
this Court granted May 22, 1972 and entered in the office
of the Clerk of Niagara County on the 22 day of May,
1972, adjudging that the defendant, Public Service Mutual
Insurance Co. is not obligated to provide coverage to any
of the parties in any claim now pending between or among
the parties to this action, and from each and every part
o f said judgment.
6
Dated: Buffalo, New York, June 1, 1972.
KICK, RICE, I1USTLE.BY & CHACE,
Bhow nstein , C anale , M adden, B urke
and S iegel,
of Counsel,
Attorneys for Plaintiffs,
Office and Post Office Address,
530 Walbridge Building',
Buffalo, New York 14202,
853-7100.
Notice of Appeal of Plaintiffs.
To:
Miles, Cochrane, Grosse, Rossetti & Harper,
Attorneys for Defendant, Jamestown Mutual Insurance
Company,
Office and Post Office Address,
1560 Staffer Hilton Hotel,
Buffalo, New York 14202.
Dixon, DeMarie & Szvmoniak,
Attorneys for Defendants, Gross Plumbing db Heating
Co., Inc., and Public Service Mutual Insurance Co.,
Office and Post Office Address,
610 Walbridge Building,
Buffalo, New York 14202.
Grossman & Levine,
Attorneys for Defendant, Carolyn S. Jensen, as Adminis
tratrix of the Estate of Walter M. Jensen, Deceased,
Office and. Post Office Address,
8612 Buffalo Avenue,
Niagara Falls, New York 14304.
Clerk of Niagara County,
Niagara County Court House,
Lockport, New York.
Benjamin N. Hewitt, Esq.,
Office and Post Office Address,,
United Office Building,
Niagara Falls, New York.
7
STATE OF NEW YORK
SUPREME COURT— C o u nty of N iagara
Judgm ent Appealed From .
------------- o-------------
W ALTER S. KOZDRANSKI CO,, INC.,
Plaintiff,
vs.
JAMESTOWN MUTUAL INSURANCE
COMPANY, et al.,
Defendants.
Calendar #592 (72-169) NJ,
Index #18880.
•------------ o-------------
The above entitled action having come on for trial in this
Court, before Hon. Frank J. Kronenberg, Justice without
a jury, at a Trial Term of this Court on the 19th day of
April, 1972, in the Court House in the City of Niagara
Falls, County of Niagara, and
The plaintiff, Walter S. Kozdranski Co., Inc., having
appeared by its attorneys, Rice, Rice, Hustleby & Chaee,
John F. Canale, Esq., of the firm of Brownstein, Canale,
Madden, Burke & Siegel, of counsel; and
The defendant, Jamestown Mutual Insurance Company,
having appeared by its attorneys, Miles, Cochrane, Grosse,
Rossetti & Harper, Raymond T. Miles, Esq., of counsel, and
The defendant, Carolyn S. Jensen, as Administratrix of
the Estate of Walter M. Jensen, Deceased, having appeared
by her attorneys, Grossman & Levine, Stanley Grossman,
Esq., of counsel; and
8
Judgment A ppealed From,,
The defendants, Gross Plumbing & Heating Company,
Inc., and Public Service Mutual Insurance Company, hav
ing appeared by their attorneys, Dixon, DeMarie & Szy-
moniak, Anthony J. DeMarie, Esq., and Henry Katz, Esq.,
co-counsel; and
The defendant, Jamestown Mutual Insurance Company,
having moved to amend its Amended Answer; said motion
having been granted; and
John F. Canale, Esq., attorney for the plaintiff, Walter
S. Kozdranski Company, Inc., having moved to add as a
party-plaintiff, in this action, .Donald E. Chapman, and to
amend the title accordingly; and all the attorneys having
stipulated to said motion, and the same having been, in all
respects, granted, and thereafter
The plaintiff, Donald E. Chapman, having appeared per
sonally and by his attorneys, Rice, Rice, Hustleby & Chaee,
John F. Canale, Esq., of counsel; and
The issues having been duly tried, and the Court having
rendered its decision by written memorandum dated April
24, 1972, and filed in the Niagara County Clerk’s Office, in
which this Court decided
That the General Liability C Policy No. GLA 24805,
issued by the Jamestown Mutual Insurance Company, is
the proper coverage in this matter; and further
That the defendant, Gross Plumbing & Heating Company,
Inc.’s veMcle was operated by its own employee and was not
in the possession or control of the plaintiff, Walter S.
Kozdranski Co., Inc., or its employees and that said vehicle
was neither loaned nor borrowed by the said Walter S.
9
M emorandwn.
Kozdranski Company, Inc., and that therefore there is no
responsibility upon the defendant, Public Service Mutual
Insurance Company, for coverage in this matter, it is hereby
ADJUDGED, that the plaintiff, Walter S. Kozdranski
Company, Inc., have judgment against the defendant,
Jamestown Mutual Insurance Company, to provide cover
age to the plaintiff under its General Liability Policy No.
CLA 24865, and not under any other policy, and it is further
ADJUDGED, that the defendant, Public Service Mutual
Insurance Company, is not responsible for coverage to any
of the parties in any claim now pending between or among
the parties to this action.
Judgment entered this 22nd day of May, 1972.
/ s / BERNARD SAELZLER,
Deputy Niagara County Clerk.
Memorandum.
(Same Title.)
KRONEN BERG, J.
Plaintiff herein seeks a Declaratory Judgment seeking the
determination of their rights and the obligations pursuant
to insurance policies issued by the insurance companies
named as defendants to the plaintiff and to Gross Plumbing
and Heating Company, Inc. who are also parties to the
action.
10
Summons.
The Court finds first, that the General Liability Policy
No. GLA 24805 issued by the Jamestown Mutual Insurance
Company is the proper coverage in this matter.
The Court finds secondly, that the Gross Plumbing and
Heating Company, Inc. vehicle was operated by its own
employee and was not in the possession or control of the
Kozdranski Company or its employees and that it was
neither loaned nor borrowed by the Kozdranski Company
and that therefore there is no responsibility on Public
Service Mutual Insurance Company for coverage in this
matter.
Submit Judgment accordingly.
FRANK J. KRONENBERG,
Supreme Court Justice.
Dated: April 24, 1972.
Summons.
(Same Title.)
To the above named Defendants:
You are hereby summoned, to answer the complaint in
this action, and to serve a copy of your answer, or if the
complaint is not served with this summons, to serve a notice
of appearance, on the plaintiff’s attorneys within twenty
days after the service of this summons, exclusive of the
day of service, or within thirty days after the service is
complete if this summons is not personally delivered to you
11
within the State of New York. In case of your failure to
appear or answer, judgment will be taken against you by
default for the relief demanded in the complaint.
The plaintiff has its place of business at No. 1865 Third
Avenue, in the Town of Niagara, New York, and designated
Niagara County as the place of trial.
Dated the 9th day of March, 1972.
RICE, RICE, HUSTLEBY & CHACE,
Attorneys for Plaintiff,
608 M & T Building, 44 Falls Street,
Niagara Falls, New York 14303,
Phone 285-6954.
Com,plaint,
Complaint.
(Same Title.)
Plaintiff, by Rice, Rice, Hustleby & Chaee, its attorneys,
complaining of the defendants and for a cause of action,
alleges:
1. That tlie plaintiff is a domestic corporation having
its office and principal place of business at 1865 Third Ave
nue, in the Town and County of Niagara, State of New
York.
2. That the defendant Jamestown Mutual Insurance
Company (hereinafter called “ Jamestown” ) is a domestic
corporation having an office and place of business at 220
Delaware Avenue, in the City of Buffalo, County of Erie
and State of New York.
12
3. Upon information and belief, the defendant Carolyn
S. Jensen, as Administratrix of the Estate of Walter M.
Jensen, Deceased (hereinafter called “Jensen” ), resides at
881 Hillside Drive, in the Town of Lewiston, County of
Niagara and State of New York.
4. That the defendant Gross Plumbing & Heating Co.
Inc. (hereinafter called “ Gross” ) is a domestic corporation
having an office and principal place of business at 2104
Niagara Avenue, in the City of Niagara Falls, County of
Niagara and State of New York.
5. That the defendant Public Service Mutual Insurance
Co. (hereinafter called “ Public Service” ) is a domestic cor
poration having an office and place of business at 10 Gibbs
Street, in the City of Rochester, County of Monroe and
State of New7 York.
G. That heretofore and on or about January 1, 1971,
the defendant Jamestown duly issued to the plaintiff a com
prehensive general liability policy, No. GLA 24865, whereby
it undertook to insure the plaintiff for the term of one year
against claims for bodily injury liability arising, among
other things, from operation of contractor’s equipment,
including power shovels and equipment incidental thereto,
rented to others with operators, which policy remained in
effect throughout 1971.
7. That at or about the same time, said defendant James
town also duly issued to the plaintiff a comprehensive
automobile liability policy, No. GLA 24864, whereby it
undertook to insure the plaintiff for the term of one year
against claims for bodily injury liability arising out of the
operation of various types of automobiles, as that word is
defined therein, which policy remained in effect throughout
1971.
Complaint.
13
8. That prior to June 15, 1971, plaintiff was employed
by Stauffer Chemical Company (hereinafter called “ Stauf
fer” ) to remove certain sludge waste from a pit maintained
by said Stauffer within its factory property in the Town of
Lewiston, Niagara County, New York, and to dispose of
such sludge in another portion of the premises owned by
said Stauffer.
9. That an order to accomplish such work, plaintiff
caused a motor-driven backhoe owned by it to be moved
to the Stauffer site, and also rented a dump truck from
the defendant Gross in which to deposit such sludge upon
its removal from the said pit and for the transportation
thereof to the area of ultimate disposal.
10. Upon information and belief, that on June 15, 1971,
while said backhoe, operated by an employee of plaintiff,
one Donald E. Chapman, was removing such sludge from
the pit and loading the same in said dump truck owned by
defendant Gross, a pipe leading from an above-ground
storage tank to said pit became dislodged, causing the emis
sion from such storage tank of gaseous hydrogen chloride
and silicon tetrachloride.
11. That the defendant Jensen has heretofore com
menced action against this plaintiff alleging that, by reason
of the negligent and careless action of this plaintiff in the
operation of such backhoe, said gases were permitted to
contaminate the air and to bring about the death of her
intestate, Walter M. Jensen. Said defendant in said action
seeks to recover the sum of $3,000,000 by reason of the
death of said Walter M. Jensen and the sum of $1,000,000
for pain and suffering prior to his death.
Complaint.
14
12. That by letters to plaintiff, dated January 24, 1972,
and February 7, 1972, the defendant Jamestown has noti
fied plaintiff that it is defending plaintiff in such action
under automobile comprehensive liability policy GLA 248(54,
but has declined to defendant plaintiff under comprehensive
general liability policy GLA 24865, despite the fact that the
negligence alleged against plaintiff resulted from operation
of mobile equipment owned by it..
13. That plaintiff is entitled to be defended in said ac
tion brought by said defendant Jenson by the defendant
Jamestown under said policy GLA 24865 .and also under
said policy GLA 24864 by reason of the loading and un
loading coverage afforded by the later policy.
14. Upon information and belief, that on June 15, 1971,
the defendant Gross was insured by defendant Public
Service under a comprehensive automobile liability policy.
15. That defendant Jamestown’s counsel in said action
brought by defendant Jensen, Benjamin N. Hewitt, Esq.,
has heretofore been orally requested to bring in plaintiff’s
operator, Donald E. Chapman, as party defendant liable
over to plaintiff for any negligence attributable to plaintiff
in the, operation of said backhoe, but said Chapman has not
yet been interpleaded as a defendant in such action.
16. Upon information and belief, if said Chapman is
brought in as a party defendant lie will be entitled to be
defended by defendant Public Service pursuant to the load
ing and unloading provisions of the liability policy issued
by said Public Service, and Public Service will be ratably
liable for any judgment which may be granted against said
Chapman to the extent of its policy limit..
Com,plaint.
15
17. That the plaintiff will sustain grave and irreparable
damage in the event of entry against it of a judgment in
favor of said defendant Jensen in an amount in excess of
the policy limit afforded by GLA 24864 if defendant James
town is permitted to defend plaintiff only with respect to
that policy. Similar damage may likewise be sustained by
plaintiff unless said Chapman is brought in as a party liable
over and is afforded a defense by the defendant Public
Service.
18. That each of the parties defendant herein are neces
sary parties to the full determination of the rights of the
plaintiff.
11). That plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff demands judgment declaring:
1. That the denial by defendant Jamestown of defense
of the plaintiff under its Policy No. GLA 24865 in the ac
tion of Carolyn S. Jensen, as Administratrix of the Estate
of Walter M. .Jensen, Deceased vs. Walter S. Kozdranski
Co., Inc., is improper.
2. That plaintiff is entitled to be defended in said action,
and is entitled to full protection ratably to the maximum
coverage afforded under Policies Nos. GLA 24865 and
GLA 24864.
3. That plaintiff is entitled to require Jamestown to
bring in Donald E. Chapman as a party defendant in said
action liable over to plaintiff for the amount of any judg
ment which may be granted against plaintiff by reason of
its employment of said Chapman.
4. Tliat when said Chapman is brought in as a party
defendant, he will be entitled to defense by said defendant
Complaint,
16
Public Service, and such defendant will be ratably respon
sible, to the limit of its coverage, for any judgment rendered
in such action against, said Donald E. Chapman.
5. That the plaintiff recover the costs of this action.
6. That the plaintiff have such other, further or differ
ent relief as to the Court may seem just and proper.
RICE, RICE, IIUSTLEBY & Oil ACE,
Attorneys for Plaintiff,
608 M & T Building, 44 Falls Street,
Niagara Falls, New York 14303,
Telephone: (716) 285-6954.
Answer of Defendant Jamestown Mutual
Insurance Company.
Answer of Defendant Jamestown Mutual
Insurance Company.
(Same Title.)
The defendant, Jamestown Mutual Insurance Company,
by its attorneys, Miles, Cochrane, Grosse, Rossetti &
Harper, for its answer to the complaint of the plaintiff:
I. Denies each and every allegation contained in para
graphs 6, 7, 8, 9, 13, and 17 of the plaintiff’s complaint.
II. Denies any knowledge or information sufficient to
form a belief as to the allegations of paragraphs 3, 4, 5,
and 10 of the plaintiff’s complaint.
17
WHEREFORE, defendant, Jamestown Mutual Insur
ance Company, demands judgment dismissing the com
plaint of the plaintiff together with the costs and disburse
ments of this action.
Dated: Buffalo, New York, March 24, 1972.
MILES, COCHRANE, CROSSE,
ROSSETTI & HARPER,
Attorneys for Defendant, Jamestown
Mutual Insurance Company,
1560 Staller Hilton. Hotel,
Buffalo, New York 14202.
Phone: 852-3600.
Amended Answer of Defendant Jamestown Mutual
Insurance Company.
Amended Answer o f Defendant Jamestown
Mutual Insurance Company.
(Same Title.)
The defendant, Jamestown Mutual Insurance Company,
by its attorneys, Miles, Cochrane, Crosse, Rossetti &
Harper, for its amended answer to the complaint of the
plaintiff;
I. Denies each and every allegation contained in par
agraphs 6, 13 and 17 of the plaintiff’s complaint
II. Denies any knowledge or information sufficient to
form a belief as to the allegations of paragraphs 3, 4 and
10 of the plaintiff’s complaint.
18
AND FOR A FURTHER, SEPARATE AND AF
FIRM ATIVE DEFENSE AND BY W AY OF CROSS
CLAIM AGAINST THE DEFENDANT, PUBLIC SERV
ICE MUTUAL INSURANCE CO., THIS DEFENDANT
ALLE G E S:
ITT. Upon information and belief, that the 'Public Serv
ice Mutual Insurance Co. did issue to Gross Plumbing &
Heating Co., Inc. a comprehensive automobile liability
policy which was in effect on June .15, 1971.
TV. Upon information and belief, that on June 15, 1971,
a truck owned by said Gross Plumbing & Heating Co., Inc.
was being loaded on premises owned by Stauffer Chemical
Company in the Town of Lewiston, Niagara County, New
York.
V. Upon information and belief, that assisting in said
loading process was an employee o f the plaintiff corpora
tion who was, in turn, operating a backhoe owned by the
plaintiff.
VI. That a lawsuit has been brought against the plain
tiff in the Supreme Court, Niagara County, by Carolyn S.
Jensen, as Administratrix of the Estate of Walter M.
Jensen, Deceased, and a copy of the complaint in said
lawsuit is annexed hereto and marked Exhibit A.
VII. That by the. terms of the said policy issued to the
defendant, Gross Plumbing & Heating Co., Inc., by the
Public Service Mutual Insurance Co. covering the said
vehicle o f Gross Plumbing & Heating Co., Inc., the plaintiff
herein was entitled to indemnification against any claims
made against the plaintiff arising ont of the operation,
use and maintenance of said backhoe and/or truck in said
loading procedure as alleged in the annexed complaint.
Amended Answer of Defendant Jamestown Mutual
Insurance Company,
19
V m . That by the terms of said policy issued to the
defendant, Gross Plumbing & Heating Co., Inc., by said
defendant. Public Service Mutual Insurance Co., the plain
tiff herein is entitled to be defended against any claim
being made against it arising out of the operation, use and
maintenance of said baekhoe and/or truck in said loading
procedure as alleged in the annexed complaint.
IX. That this defendant did issue to the plaintiff herein
its policy of automobile liability insurance in effect on June
15, 1971, said policy being numbered GLA 24864.
X. That said policy of this defendant numbered GLA
24864 entitled the plaintiff herein to indemnification against
claims made against it arising out of the use, operation
and maintenance of its baekhoe, as aforesaid and also en
titled the plaintiff to a defense against such claims, subject,
however, to certain conditions.
XT. That said policy of this defendant numbered GLA
24864 entitled the plaintiff herein to indemnification against
the claims asserted in the complaint annexed hereto and
also entitled the plaintiff to a defense against the claims
asserted in the complaint annexed hereto, subject, however,
to certain conditions.
XII. That one of the conditions referred to in the
preceding two paragraphs is that the insurance afforded to
the plaintiff under this defendant’s comprehensive auto
mobile insurance policy numbered GLA 24864 would be
secondly to the insurance afforded to the plaintiff herein
in a loading or unloading procedure, as alleged in the com
plaint annexed hereto.
Amended Answer of Defendant Jamestown Mutual
Insurance Company.
20
XIII. That by reason of the condition referred to above
the insurance afforded to the plaintiff herein under this
defendant’s comprehensive automobile insurance policy
numbered GLA 24864 is secondary to the insurance of the
defendant, Public Service Mutual Insurance Co., entitling
the plaintiff herein to indemnification and defense from
said Public Service Mutual Insurance Co. under the circum
stances alleged in the annexed complaint.
XIV. That this defendant did also issue its comprehen
sive genera! liability policy numbered GLA 24865 to the
plaintiff which was in effect on June 15, 1971.
XV. That by the terms of said policy numbered GLA
24865 there was no obligation on the part of this defendant
to indemnify or provide a defense to the plaintiff against
any claims against the plaintiff arising out of the use,
operation and maintenance of its bacfchoe on June 15, 1971,
as alleged in the annexed complaint.
WHEREFORE, this defendant demands judgment de
claring :
1. That, Public Service Mutual Insurance Co. is obli
gated to defend the plaintiff herein in the suit brought
against the plaintiff by the defendant, Carolyn Jensen, as
Administratrix of the Estate of Walter M. Jensen, De
ceased, in the Supreme Court, Niagara County.
2. That Public Service Mutual Insurance Co. is obli
gated to indemnify the plaintiff herein to the full extent of
the coverage of its policy issued to Gross Plumbing &
Heating Co., Inc. against any claim alleged against the
plaintiff in the complaint annexed hereto to the full extent
of the policy issued by Public Service Mutual Insurance
Co.
Amended Answer of Defendant Jamestown Mutual
Insurance Company,
21
3. That this defendant is obligated to indemnify the
plaintiff herein to the full extent of the coverage of its
automobile insurance policy GLA 24864 issued to the
plaintiff, but only over and above the primary indemnifica
tion of the plaintiff by Public Service Mutual Insurance
Co. against any claims alleged against the plaintiff in the
complaint annexed hereto.
4. That there is no right on the part of the plaintiff to
indemnification or defense by this defendant against claims
alleged to have arisen out of the events of June 15, 1971,
and by reason of the allegations in the annexed complaint
because of the issuance to the plaintiff by this defendant
of its comprehensive general liability policy numbered GLA
24865.
5. That this defendant recover of the defendant. Public
Service Mutual Insurance Co., the amount of its expendi
tures in this suit, including attorney’s fees and also its
costs in defending the plaintiff in the lawsuit brought by
Carolyn Jensen, Administratrix of the Estate of Walter
M. Jensen, Deceased, including attorney’s fees.
6. That this defendant have such other and different
relief as to the court may seem just and proper.
Dated: Buffalo, New York, March 28, 1972.
MILES, COCHRANE, GROSSE,
ROSSETTI & HARPER,
Attorneys for Defendant, Jamestown
Mutual Insurance Company,
1560 Staffer Hilton Hotel,
Buffalo, New York 14202,
Phone: 852-3600.
Amended Answer of Defendant Jamestown Mutual
Insurance Company.
22
STATE OF NEW YORK
SUPREME COURT— C o u nty op N iagara
-------------- iy---------------
CAROLYN S. JENSEN, as Administratrix of the Estate
of WALTER M. JENSEN, Deceased,
Plaintiff,
vs.
W ALTER S, KOZDRANSKT COMPANY, INC.,
Defendant.
-------------o-------------
The plaintiff in the above entitled action by her at
torneys, Grossman and Levine, as and for her complaint
therein alleges as follows:
AS AND FOR A FIRST CAUSE OF ACTION
F IR S T : That at all the times hereinafter mentioned, the
plaintiff was and presently is a resident of the Town of
Lewiston, County o f Niagara and State of New York.
SECOND: That heretofore and on the T5th day of
July, 1971, and prior to the commencement of this action,
the plaintiff, Carolyn S. Jensen, was duly appointed
Administratrix of the goods, chattels and credits o f Walter
M. Jensen, deceased, by. the Surrogate’s Court of the
County of Niagara and State of New York and Limited
Letters of Administration were duly issued to her and
she duly qualified thereunder, and thereafter acted and is
E xhibit “ A ” Annexed to Am ended Answ er o f
D efendant Jam estown M utual
Insurance Company.
23
now acting as such Administratrix of the Estate of Walter
M. Jensen, deceased.
THIRD: That, upon information and belief, at all the
times hereinafter mentioned, the defendant was and pres
ently is a domestic business corporation organized and
existing pursuant to the laws of the State of New York
with principal office and place of business at No. I860—
Third Avenue in the Town of Niagara, County of Niagara
and State o f New York.
FOURTH: That, upon information and belief, at all
the times hereinafter mentioned, Stauffer Chemical Com
pany, was and presently is a domestic business corporation
duly organized and existing pursuant to the laws of the
State of New York with a place of business situate at
Lewiston Road in the Town of Lewiston, County of Niagara
and State of New York.
FIFTH : That at all the times hereinafter mentioned
the decedent, Walter M. Jensen, was in the employ of the
said Stauffer Chemical Company at its place of business
at Lewiston Road in the Town of Lewiston, County of
Niagara and State of New York.
S IX T H : That, upon information and belief, heretofore
and prior to the 15th day of June, 1971, the defendant
entered into a contract with the said Stauffer Chemical
Company whereby the said defendant agreed to perform
certain work, labor and services and to supply the neces
sary materials and equipment to perform said services
upon the said premises of the said Stauffer Chemical
Company situate in the Town of Lewiston, County of
Niagara and State of New York.
Exhibit “A ” Annexed to Amended Answer.
24
SEVENTH : That, upon information and belief, on or
about the 15th day of June, 1971, the defendant commenced
upon the work required of it pursuant to the said contract
entered into between said defendant and the said Stauffer
Chemical Company upon the said premises of the Stauf
fer Chemical Company situate in the Town of Lewiston,
County of Niagara and State of New York,
EIGHTH: That, upon information and belief, on or
about the 15th day of June, 1971, while the defendant was
engaged in the performance of said services upon the said
premises of the Stauffer Chemical Company, the said
defendant commenced the removal of chemical sludge
from a storage pit owned and maintained by the said
Stauffer Chemical Company.
NINTH : That, upon information and belief, on or about
the 15th day of June, 1971, while the defendant was per
forming the removal of the chemical sludge referred to in
the preceding paragraph, the defendant used certain ma
chinery consisting of a hack hoe and so carelessly and neg
ligently used said machinery that it broke a pipe line con
structed and maintained by the said Stauffer Chemical
Company upon its said premises containing a chlorine type
gas and that as a consequence thereof said gas escaped
from said pipe line and contaminated the air and was in
haled by the decedent, so as to cause said decedent to sus
tain severe, serious and permanent internal burns and
personal injuries as the result whereof he died on the 18th
day of June, 1971.
TE N TH : That the aforesaid accident was caused
wholly and solely as the consequence of the carelessness
and negligence of the defendant, its agents, servants and/or
employees.
Exhibit “ A ” Annexed to Amended Answer.
25
ELEVENTH: That the said decedent left him surviv
ing his widow, Carolyn S. Jensen, named as Administratrix
of the estate of the decedent in this action and one (1) male
child, Daniel W. Jensen, aged fourteen (14) months at
the time of the death of the decedent as his only distrib
utees.
TW ELFTH : That the said decedent immediately prior
to the accident hereinabove described was in good health,
sound physical condition, industrious and in possession of
ail his faculties.
THIRTEENTH: That the said widow of the said
decedent and the said son of the said decedent were de
pendent upon him for services, aid, comfort and society
all of which have been lost as the consequence of the death
of the said decedent.
FOURTEENTH: That the plaintiff herein has incur
red large expenditures for medical, hospital, funeral,
burial and other expenses in connection with the injuries
to and the death and burial of the said decedent,
FIFTEE N TH : That by reason of the foregoing, the
plaintiff demands judgment against the defendant in the
sum of Three Million ($3,000,000.00) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION
SIXTEENTH: That the plaintiff repeats, reiterates
and realleges each and every allegation contained in para
graphs of this complaint numbered “ First” through
“ Fifteenth”, all inclusive, with the same force and effect
as though the same were more fully set forth herein.
SEVENTEENTH: That the said decedent prior to his
death on the 18th day of June, 1971, sustained great, severe
Exhibit “ A ” Annexed to A wended Answer.
2G
Answer of Defendant Carolyn S. Jensen, as Administratrix
of the Estate of Walter M. Jensen, Deceased,
and permanent personal injuries and became sick, sore
and disabled and suffered great pain, shock and physical
and mental anguish as the consequence o f said accident,
all to Ms damage in the sum of One Million ($1,000,000.00)
Dollars.
WHEREFORE, plaintiff demands judgment against the
defendant upon the first cause of action herein in the sum
of Three Million ($3,000,000.00) Dollars and upon the
second cause of action in the sum of One Million
($1,000,000.00) Dollars with the costs and disbursements
of this action.
GROSSMAN and LEVINE,
Attorneys for Plaintiff,
8612 Buffalo Avenue,
Niagara Falls, New York 14304.
Answer of Defendant Carolyn S. Jensen, as
Administratrix of the Estate of
Walter ML Jensen, Deceased.
(Same Title.)
The defendant, Carolyn S. Jensen, as Administratrix of
the Estate of Walter M. Jensen, Deceased, by her attor
neys, Grossman and Levine, as and for her answer to the
complaint of the plaintiff in the above entitled action:
1. Admits each and every allegation contained and set
forth in paragraphs “ 3” and “ 11” of the complaint of the
plaintiff.
27
Answer of Defendants Gross Plumbing & Heating Go., Inc.
and Public Service Mutual Insurance Co., Inc.
2. Denies information sufficient to form a belief as to
each and every other allegation contained and set forth in
the complaint of the plaintiff.
WHEREFORE, defendant, Carolyn S. Jensen, as Ad
ministratrix of the Estate of Walter M. Jensen, Deceased,
demands judgment dismissing any prayer or demand by
the plaintiff herein for relief or judgment against the said
Carolyn S. Jensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased,
GROSSMAN and LEVINE,
Attorneys for Defendant, Carolyn S.
Jensen, as Administratrix of the
Estate of Walter M. Jensen, De
ceased,
8612 Buffalo Avenue,
Niagara Falls, New York 14304.
Answer of Defendants Gross Plumbing & Heating
Co., Inc. and Public Service Mutual
Insurance Co., Inc.
(Same Title.)
The Defendants, Gross Plumbing & Heating Co., Inc., and
Public Service Mutual Insurance Co., Inc., by their attor
neys, Dixon, De Marie & Szymoniak, for their answer to
the plaintiff’s complaint herein, allege:
FIRST: Deny each and every allegation contained in
paragraphs “ Ninth”, “ Tenth” , “ Sixteenth” , “ Seventeenth”
and “ Nineteenth” of the plaintiff’s complaint.
28
Reply of Defendant Public Service Mutual
Insurance Company.
SECOND: Deny any knowledge or information suffi
cient to form a belief as to the allegations contained in
paragraphs “ First” , “ Second” , “ Third” , “ Sixth” , “ Seven
th” , “ Eighth” , “ Eleventh”* “ Twelfth” , “ Thirteenth” , “ F if
teenth” and “ Eighteenth” of the plaintiff’s complaint.
WHEREFORE, defendants demand judgment dismiss
ing the plaintiff’s complaint, together with the costs and
disbursements of this action.
DIXON, Dk MARIE & SZYMONIAK,
Attorneys for Defts., Gross Plumbing &
Heating Co. $ Public Service Mutual,
610 Walbridge Building,
Buffalo, New York 14202.
T o :
Rice, Rice, Hustleby & Chaee,
608 M & T Building,
44 Falls Street,
Niagara Falls, New York 143011.
Reply o f Defendant Public Service Mutual
Insurance Company.
(Same Title.)
The Defendant, Public Service Mutual Insurance Com
pany, by its attorneys, Dixon, De Marie & Szymoniak, for
its reply to the affirmative defense and cross claim of the
defendant, Jamestown Mutual Insurance Company, alleges:
FIRST: Denies paragraphs “ TV”, “ V ” , “V II” , “ V III”
and “ X III” .
29
SECOND: Denies knowledge or information sufficient
to form a belief as to tin; allegations contained in para
graphs “VT”, “ TX”, “ X ” , “ XT” , “ XIT”, “ XTV” and “ X V ” .
WHEREFORE, the defendant demands judgment dis
missing the affirmative defense and cross claim of the
defendant, Jamestown Mutual Insurance Company, together
with the costs and disbursements of this action.
DIXON, De MARIE & SZYMONTAK,'
Attorneys for Defendant, Public Sendee,
Mutual Ins. Co.,
610 Walbridge Building,
Buffalo, New York 14202.
To:
Miles, Cochrane, Grosse,
Rossetti & Harper,
Attorneys for Deft.,
Jamestown Mutual Ins. Co.,
1560 Stall er Hilton Hotel,
Buffalo, New York 14202.
Rice, Rice, ITustleby & Chase,
Attorneys for Plaintiff,
M & T Bldg., 44 Falls Street,
Niagara Falls, N. Y.
Reply of Defendant Public Service Mutual
Insurance Company.
80
Proceedings of April 19,1972,
STATE OF NEW YORK
SUPREME COURT—N iagara C ounty
------------o------------ .
W ALTER S. KOZDRANSKI CO., INC.,
Plaintiff,
vs.
JAMESTOWN MUTUAL INSURANCE COMPANY;
CAROLYN S. JENSEN, as Administratrix o f the
Estate of Walter M. Jensen, Deceased; GROSS PLUMB
ING & FI EATING CO., INC.; and PUBLIC SERVICE
MUTUAL INSURANCE COMPANY,
Defendants,
------------ o------------
Proceedings held before the Hon. Prank J. Kronenberg,
Justice of the Supreme Court, in the County Building,
Niagara Falls, New York, April 19, 1972.
Appearances:
Rice, Rice, Hustleby & Chase, by John F. Canale, o f
counsel, attorneys for the, plaintiff.
Miles, Cochrane, (I rosse, Rossetti & Harper, by Ray
mond T. Mii<>s, of counsel, attorneys for the Defendant
Jamestown Mutual Insurance Company.
Stanley Grossman, attorney for the Defendant Carolyn
S. Jensen, as Administratrix of the Estate o f Walter M.
Jensen, Deceased.
Dixon, I)e Marie & Szymoniak, by Anthony J. Be Marie,
of counsel, and Henry Katz, attorneys for the Defendants
Gross Plumbing & Heating Co., Inc. and Public Service
Mutual Insurance Company.
31
Proceedings of April 19,1972.
The Court: I am ready if you are.
Mr. De Marie: Your Honor, may I state for the record
that I have co-counsel with ine this morning, Mr. Henry
Katz, from New York City.
The Court: How are you, Mr. Katz?
Mr. Katz: How are you, sir! May I request permis
sion to try the case since it only involves insurance.
The. Court: Permission granted.
Mr. De Marie: lie is an attorney permitted to practice
in the state.
Mr. Katz: I am the attorney of record.
The Court: You represent Jamestown Mutual, right?
Mr. Miles: Yes, sir.
The Court: You represent the plaintiff?
Mr. Grossman: I represent the defendant.
The Court: You represent the defendant?
Mr. Grossman: A defendant in the declaratory judg
ment
The Court: Oh, I see.
Mr. Miles: Your Honor, at this time I assume you now
have a full set of pleadings.
The Court: You may assume I have a full set of plead
ings, and I haven’t looked at them.
Mr. Miles: Well, T propose at this time to amend the
amended answer of the Jamestown Mutual Insurance Com
pany, referring to Paragraph 15, to add to that—it will be
in a blue cover, sir—to add to Paragraph 15 the follow
ing: i.e. that is, in the loading of the truck owned by the
Defendant Gross. I move for the amendment to the plead
ing as T have just stated it.
Mr. Canale: T have no objection, your Honor.
Mr. De Marie: Would you say that again.
32
Stipulation,
Mr. Miles: If you will look at Paragraph 15 of our
answer I request there be added the words: That is, in the
loading of the truck owned by the Defendant Gross Plumb
ing & Heating Co., Inc.
Mr. Katz: Paragraph 15 did you say!
Mr. Miles: Yes, sir.
Mr. Katz: Thank you. No objection that.
The Court: Granted. Ready, counsel ?
Mr. Canale: Yes, your Honor. Your Honor, I move at;
this time—T believe counsel have stipulated that this mo
tion be granted and an order to this effect be entered—to
add as a party plaintiff to this lawsuit that is now being
tried before your Honor Donald E. Chapman as a party
plaintiff, and that the title of the lawsuit he amended
accordingly so that the action will read—
The Court: Was he Gross’ driver?
Mr. Canale: No, your Honor.
The Court: The driver of the truck?
Mr. Katz: No, the back hoe.
Mr. Canale: He is an employee of Kozdranski, your
Honor.
Mr. Katz: The driver of the back boe.
The Court: He was employed by who?
Mr. Canale: Kozdranski.
The Court: You say it was stipulated?
Mr. Canale: T believe it is stipulated. Ts that correct,
gentlemen ?
Mr. Katz: Yes, I have no objection to that.
The Court: So ordered.
Mr. Canale: Thank you. T take it, your Honor, you will
dispense with opening statements, or does the court prefer
that we make them?
33
The Court: It is not necessary. Proceed.
Mr. (Canale: Mr. Chapman, please.
DONALD E. CHAPMAN, 442 73rd Street, Niagara
Falls, New York, a witness called by and on behalf of the
plaintiff, was duly sworn and testified as follows:
Direct Examination by Mr. Canale:
Q. Mr. Chapman, by whom are you employed? A.
Walter S. Kozdranski Company.
Q. And how long have you been employed by them? A,
Several years; five— seven years, something like that.
Q. And in what capacity are you employed by them!
A. I am an equipment operator.
Q. And would that be the job classification that you
were employed as in June of 1971? A. Yes, sir.
Q. Would you tell us briefly what that job classification
means; what your duties are. A. Well, we operate all
different types of equipment that you are sent on to—if
you are able to and qualified to.
Q. What type of business generally is your employer
engaged in? A. lie is rental, dump truck service—in that
field.
Q. Do you recall being engaged in the course of your
employment on June 15, 1971 at which time an incident
occurred on the premises of Stauffer Chemical Company!
A. Yes, sir.
Q. And will you tell me under what circumstances you
happened to be on those premises at that time. A. I was
called in that morning to take a machine to Stauffer Chemi
cal.
Q. And what type of machine was it that yon were to
take there ? A. A 580 Case.
D. E. Chapman, for Pltf., Direct.
D. K. Chapman, for Pltf., Direct.
Q. And that’s a back hoe, is it? A. Trencher-back hoe
they call it.
Q. Do yon remember what year that hack hoe was? A.
No, sir.
Q. Will you describe briefly what a back hoe is. A.
Well, it’s got a hydraulic bucket in front and it’s got the
same— a different kind of a bucket in the hack. Ft’s got a
boom with a dipper on it and like that.
Q. What kind of work is this piece of equipment that
you have described primarily designed to do? What kind
of work does it do? A. Well, you can dig trenches with it,
you can do a number of things with it—with the back end
of the machine-—and you can use the front end of the
machine to level off areas and load trucks with it.
Q. Is it primarily designed for use off the highway in
connection with the performance of work off the highway?
A. Yes, sir.
Q. Can it also he driven on the highway, however! A.
Yes, sir.
Q. Did this particular hack hoe that you were operating
at the time this incident occurred—does that have a regular
license plate on it or not? A. It’s got what they call a
special commission license place.
Q. Is that a special permit for use. on the highway inci
dental to getting to a job site ? A. Right.
Q. Lt’s not a regular plate like we have on our cars or
like you see on a commercial truck? A. No. Well, it’s the
same color and everything but—
Q. But it’s a two-dollar permit you say? A. Right.
Q. Then you drove the back hoe to the job site, did you?
A. Yes, sir.
Q. And where was the job site ? A. At Stauffer Chemi
cal on Lewiston Road.
35
Q. This incident that later occurred which is the subject
matter of another lawsuit, did that occur on the Stauffer
premises! A. (No response.)
Q. This incident that we are talking about that is the
subject matter of another lawsuit, that occurred on the
Stauffer premises, is that correct? A. That’s right, sir.
Q. It was off the premises of your employer? A. Yes,
sir.
Q. All right. Now, what kind of a job were you assign
ed to do at Stauffer Chemical on that day? A. I was
assigned to take a machine, a 580 Case, to the Stauffer
Chemical Company to clean out a sludge pit.
Q. To clean out a sludge pit! A. Eight.
Q. And will you tell us how that was accomplished. Was
there any other equipment being used at that time also in
connection with that purpose? A. Well, there was a truck
to be used on the job.
Q. All right, and that was a dump truck, was it? A.
Yes, sir.
Q. And did you meet the dump truck and its driver at
the Stauffer premises? A. Yes, sir.
Q. And who was the owner of that dump truck? A.
John Gross Plumbing.
Q. John Gross Plumbing? A. Yes, sir.
Q. Do yon know the name of the driver of that truck!
A. No, I don’t.
Q. At any rate, he was not a co-employee of yours? A.
No, sir.
Q. And the dump truck that was being used in connec
tion with this operation and your operation of the back hoe
was not owned by your employer? A. No, sir.
Q. Is that correct? A. Right, sir.
D. E. Chapman, for Pltf., Direct.
36
Q. Now, will you tell us what the physical setup was at
the job site after these two units were lined up for the
purpose of cleaning out the pit. How was that done? A.
Well, you use the back of the machine and you put the
bucket on the back of the machine into the pit to clean out
the sludge and then you dump it into the truck.
Q, T see. As T understand it then you were filling the
bucket on the back hoe with sludge from the bottom of the
pit, is that correct? A. From the pit.
Q. From the pit? A. (tight.
Q. Arid then transferring the sludge from the pit by
way of the bucket to the dump truck, is that correct? A.
Right, sir.
Q. And the dump truck was parked in such a position
that the bucket of the back hoe could be swung over to it,
is that right? A. Yes, sir.
Q. And were you in the process of loading that truck
so that when it was full of sludge it would leave?
Mr. Katz: If the court please, may I suggest that
counsel is leading and suggesting. We are getting
to the meat of the case now.
The Court,: Sustained.
By Mr, Canale;
Q. All right. Will you tel! us what you were doing then
with reference to your use of the back hoc as it related to
the truck.
Mr. K atz: May we have the time fixed, sir?
The Court: You may.
Q. All right, when you first began the job—
Mr. K atz: All right.
Q. (Cont’d.)—will you tell us from the beginning what
the first thing you did was.
I). E. Chapwm, for PUf., Direct.
37
Mr. Canale: All right, Mr, Kate!
Mr. K atz: Yes, surely,
A. Well, I set the machine up so I can clean out the
sludge out of the pit. Then I helped the truck back to the
machine so I could get the bucket over the center of the
truck so I could put the sludge in the pit—in the truck.
Q. And then were you transferring sludge from the pit
to the dump truck by means of the bucket! A, Right.
Mr. Katz: May 1 again object to counsel leading
and suggesting.
The Court: Sustained.
Mr. Katz: Can we have the witness tell us what
Ms activity was!
Mr. Canale: I am sorry.
By Mr. Canale:
Q. Mr. Chapman, will you tell us then what the physical
movement of the bucket was with relation to the truck from
the time the job first commenced. Do you understand! A.
Not really. I don’t know—
Q. Well, Mr. Katz wants to know what you were doing
at the time. A. I was cleaning up—
Mr. Katz: Is this at the beginning of the job!
Mr. Canale: At the beginning of the job.
Mr. Katz: Fine.
A. (Cont’d.) I set the machine up so I can clean out
the sludge out of this pit. 1 put the bucket in the pit, filled
the bucket, raised the boom, swing the bucket, over and I
dumped the sludge into the truck.
The Court: Did you do this by pulling certain
levers?
The Witness: Yes, sir. Yes, your Honor.
The Court: And you repeated that on a number
of occasions!
D. E. Chapman, for Pltf., Direct.
38
The Witness; Yes, sir, right.
By Mr. Canale:
Q. Do you know the size of the dump truck, as to how
much it held? A. No.
Q. You don’t? A. The only tiling I know about the
dump truck, it was a single axle.
Q. A single axle. A. Bight.
y. Now, how long a job was this going to be to clean
out this sludge? Do you have any idea? A. It takes
about four hours.
Q. Four hours? A. Bight.
Q. Do you have any approximation as to what time you
got there that day on .June 15, 1971? Just approximation.
A. I can’t say. About 8:00 o ’clock—maybe a little after
8 :00.
Q. Sometime in the morning hours? A. Right.
Q. Now, had any loads of the dump truck been removed
from the premises? A. 1 don’t believe so. I believe he was
just about full when I—
Q. When something happened? A. Yes.
Q. Do you know whether or not he was in fact full at the
time something occurred? A. Well, he was just about full.
Q. Had the dump truck left the premises at all prior to
something happening that morning! A. No, sir.
Q. It was still in the same position that it was parked
when this work began for the first time, is that correct? A.
Yes.
Q. Now, did there come a time when an incident occur
red that morning, something did happen? A. Yes, sir.
Q. Will you tell us what happened and I mean with
reference to what you saw on those premises at that time.
A. Well, what I saw— 1 was cleaning the sludge out of the
pit like T had been doing all morning long and out of the
I). E. Chapman, for Pltf., Direct.
39
corner of my eye I saw a white substance coming out from
the end—from the bottom of this tank, and I jumped out of
the machine, ran around—I had to run around the truck
and into the building to notify somebody that something—
some white stuff was coming out of there.
Q. Now, before you saw this white substance that you
described were you aware of any pipes in the pit! Did
you know there was a pipe there! A. You could see it,
the top of the pipe.
Q. All right. Do you know whether or not your bucket
struck the pipe I A. No, sir.
Q. Do you know whether or not it did! A. No, sir.
Q. Now, at the time that you saw this white substance,
this was coming from a tank, was it! A. Yes, sir.
Q. Will you tell us what the position of the back hoe
was and what you were doing at that time when you saw
this white substance. Do you understand? Where was the
bucket? A. The bucket was in the pit.
Q. All right, and was the bucket moving at any time, or
at that time! A. Well, it was so fast—it could have been
being drawn toward me.
Q. Well, what were you actually doing at the time that
you saw the white substance with reference to the bucket?
A. Loading the bucket with the sludge that was in the pit.
Q. When you say “ loading the bucket” was it being
dipped into the pit for sludge! A. It was already in the
pit.
Q. All right, you were accumulating sludge then in the
bucket? A. Yes.
Q. What were you going to do with that sludge in the
bucket? That particular bucket I am talking about. A.
D. E. Chapman, for Pltf., Direct.
40
That particular bucket! I was going to pick that bucket up
and dump it in the truck.
Q. And was that part of the same process that you had
been engaged in from the time the work began? A. Right,
T did the same tiling all morning long, the same process.
Q. At that point the truck was not fully loaded, is that
correct? A. No, sir.
Q. Is that correct! A. That’s correct.
Q. Do you know how the Dross truck—and that would
lie the dump truck, is that right, Mr. Chapman? A. Yes,
sir.
Q. The Gross truck would be the dump truck. A. Yes,
sir.
Q. How that got there! Were arrangements made with
your office, do you know ? A. Yes.
Q. Was til at there at the request of your employer! A.
Yes, sir.
Mr. Canale: That’s all.
CROSS EXAMINATION by Mr. Miles:
Q. That was not— that truck was not owned by your
employer. A. No, sir.
Q. It was leased by your employer.
Mr. Katz: Objection.
Mr. DeMarie: Object, if the court please.
The Court: Sustained.
Mr. Miles: May i ask that the pleadings reflect an
admission on your part that it was leased.
Mr. Katz: No, sir, there is a denial there was a
lease.
Mr. Miles: Well, I ’ll ask in open court if you will
stipulate that it was leased?
Mr. Katz: No. That’s the main crux of this case,
Judge, that it was not leased, and we deny that.
I). E. Chapman, for PUf., Cross.
I). E. Chapman, for Pltf., Re-direct.
The Court: Proceed with the hearing, gentlemen.
Any questions of law you submit to me.
Mr. Miles: May I see the answer of the Defendant
Public Service, sir. I have not been served with a
copy.
Mr. DeMarie: It’s a blue pleading, your Honor
Mr. Miles: Thank you.
Mr. Canale; Did they answer your cross claim!
Mr. DeMarie: Yes.
The Court: Well, I suppose your examination of
the answer is what governs the question you are
going to put to the witness. I am going to take a
short recess at this time. I have another matter to
take care of.
{Short recess.)
The Court; Proceed.
RE-DIRECT EXAMINATION by Mr. Canale:
Q. Mr. Chapman, do you know what the arrangement
was between your employer and Cross Plumbing!
Mr. Kate; That is objected to as already asked.
1 le said he did not.
The Court: He may answer that yes or no. Yes
or no.
Q. Do you know what the arrangement was between
your employer and Gross Plumbing with reference to the
use of the plumbing company truck! A. No, sir.
Q. One further question: At the time of this incident,
this equipment that you were operating, was it stationary
except for the movement of the bucket! A. Yes, sir.
Q. And had it been stationary in the entire-—
42
The Court: l don’t understand that question, Mr.
Canale; was it stationary except for the bucket?
You mean it didn’t move around!
The Witness: The only part of the machine that
was moving, your Honor, was the bucket and the
boom end at the Stack.
TSie Court: Was that your question ?
Mr. Canale: That is the question.
The Court: Didn’t occasionally you have to move
the machine!
The Witness; A fter you get through cleaning out
this section of the pit then you would have to move
the machine to the other side.
The Court: But in the operation of actually pick
ing up the stuff and everything the only thing you
would move was the boom and the bucket?
The Witness: Right.
Mr. Canale: That is the point T wanted to make,
your Honor. Thank you.
Mr. Miles: I have no further questions.
Mr. Grossman: I have no questions, your Honor.
RE-CROSS EXAM ( NATION by Mr. Kate:
Q. Mr. Chapman, this truck that was Gross’s truck, it
had a driver with the truck, didn’t it? A. Yes, sir.
Q. Did you have any connection with the driver at all?
Did you tell him what to do with the track or anything like
that? A. I just told him to back the truck for my con
venience to load it.
Q. All right. Other than telling the driver to back up
she truek did you have anything else to do with the opera-
tion of the truck! A. No, sir.
I). F. Chapman, for Pltf., lie-cross,
43
Q. As a matter of fact, would it be correct, sir, fia t you
couldn’t tell the driver what to do with that truck, could
you?
Mr. Canale: I object to the form of that.
Q. (Cont’d.) Other than asking Mm to back it up. A.
No, sir.
Q, Would that be correct? A. Correct.
Q. Now, how long was the truck there! A. How long
was it there?
Q. Until the accident happened! A. I don’t—
The Court : The question was how long was the
truck there before the accident happened!
Q. From the time it first arrived until the occurrence
took place. A. I don’t know what time the accident hap
pened.
Q. Well, could you give us an approximate time as to
how long the truck was there from the time it first arrived
until something happened. A. I would say an hour—
hour and a half. That’s my estimate.
Q. Now, would you know who furnished the gasoline
for the truck? A. No, sir.
Q. Would you know who took care of any repairs to the
truck if it was damaged on this job? A. No, sir.
Q. Would you give any directions to the chauffeur of
this truck as to how lie should operate the truck or where
to take the sludge? A. I wouldn’t, no.
Q. What? A. T wouldn’t, no.
Q. In other words, am 1 correct, sir, that insofar as the
operation of this truck the only thing that you did was ask
the driver to back it up to make it convenient for you so
that the bucket could drop some sludge into the truck.
Would that be correct? A. And then when he was loaded
I ’d tell him to go, that’s all.
I). E. Chapman, for Pltf., Re-cross.
44
/). E. Chapman, for Pltf,, Re-cross.
Q. Now, Mr. Chapman, when this accident happened,
when something happened, when you saw white smoke T
think you said, was this truck being loaded at that time?
Mr. Canale: Object to the form of the question,
your Honor. That is a conclusion, certainly, of law.
Mr. Miles: I will join in the objection, sir.
Mr. Canale: The witness has described—
Mr. Katz: I will withdraw the question and do it
another way.
The Court: All right.
By Mr. K atz:
Q. When you observed white smoke I think you said
coming from somewheres in the pit were you at that partic
ular time in the process of moving the bucket so that it
could drop some sludge into the truck?
Mr. Canale: Object to the form, your Honor. I
think the witness has already testified exactly as
to what he was doing. Object to it.
Mr. Katz: This is cross examination, if tire court
please.
The Court: You mean it is repetitious, Mr
Canale?
Mr. ( lanalc: Yes.
The Court: Overruled, I permit it.
The Witness: ( Jould you repeat the question.
By Mr. Katz:
Q. Sure. At the time that something happened, when
yon sawr the white smoke, was the bucket in a position to
drop any sludge into the truck? A. No, the bucket was in
the pit.
Q. So that when yonr occurrence took place here am I
correct that the back hoe at that time was not being used to
load the truck with sludge?
45
Mr, Canale: Objection.
Mr. Miles: Objection.
Q. (Cont’d.) Would that be correct!
Mr. Canale: That is the whole crux of this law
suit.
Mr. Katz: It is a very simple question, Judge.
The Court: Do you know where the truck was at
that time!
The Witness: 3 know where the truck was.
The Court: At the time you first saw this white
smoke f
The Witness: Yes.
The Court: Where was the truck!
The Witness: Parked where he had been all
morning.
The Court: As T understand your procedure was
that you would load the truck and then yon would
tell him he could go, right!
The Witness: Right.
The Court: Was the truck loaded!
The Witness: He was just about loaded, yes.
The Court: All right, thank you. Proceed.
Ry Mr. Katz:
Q, You say he was just about loaded! A. Yes, sir.
Q. And by that do you mean that the truck was—had
the amount of sludge that it could carry? Is that what you
mean by it was just about loaded; you couldn’t put any
more on it! A. Another bucket or two and I would have
told him to move on.
Q. Fine. Did you ever get to loading the truck with, the
other bucket or two lief ore you saw the white smoke! A.
No, sir.
T). E. Chapman, for Pltf., Re-cross.
46
Q. As a matter of fact, your bucket was in the pit at the
time you saw the smoke, wasn’t it ? A. Yes.
Q. Am I right? A. Right.
Q. You weren’t doing anything with relation to loading
this truck with any sludge, were you!
Mr. Miles: Objection.
Mr. Canale: Object to that.
The Court: Sustained.
By Mr. Katz:
Q. Were you doing anything with sludge with reference
to the truck when you saw the smoke?
Mr. Miles: Would you repeat the question, please.
I ’d like to hear it.
(Question read.)
Q. (Cont’d.) Anything in connection with loading of the
truck at that time!
Mr. Miles: Objection.
Mr. Canale: lie is qualifying the—
Mr. Katz: T am adding it onto the question, that
is all.
Mr. Canale: You are adding a conclusion. I ob
ject.
The. Court: Sustained.
By Mr. Katz:
Q. Now, Mr. Chapman, I think you said you were em
ployed by the Kozdrariski Company. A. Walter S. Koz-
dranski Co., yes, sir.
Q. Were you ever on the payroll of the Gross Plumbing
Company— A. No.
Q. —with reference to this particular job? A. I have
never been on the Gross payroll, no.
Q. Would you know whether the driver of this truek
was ever on Kozdranski’s payroll ? A. No, sir.
I). F. Chapman, for Fltf., Re-cross.
47
Q. Would you know anything about that? A. No, sir.
Mr. Katz: I have no further questions.
Mr. Canale: Anything else, gentlemen?
(No response.)
The Court: That is all. Thank you.
Mr. Canale: That is all, Mr. Chapman. Thank
you.
( Witness excused.)
Mr. Canale: May I have these marked for identi
fication, please..
(Thereupon the policies referred to hereafter
were marked Plaintiff’s Exhibits Nos. 1 and 2 for
identification.)
Mr. Katz: Are those the policies of Jamestown?
Mr. Canale: Yes, they are. Mr. Miles, I am offer
ing into evidence Plaintiff’s Exhibit 1 which pur
ports to he the original policy issued to my client
and in possession of my client, issued by your client,
which is Policy No. GLA-24864, and Plaintiff’s Ex
hibit 2, Policy No. OLA-24865, and T would ask for
a stipulation in connection with these exhibits that
both of these policies were in full force and effect
on June 15, 1971.
Mr. Miles; I have no objection to the offer and I
will so stipulate.
Mr. Katz: I have no objection to the policies.
Mr. Grossman : May ! see them?
Mr. Canale: Sure. Have you seen them, Mr.
Katz ?
Mr. Katz: I would like to look at them.
The Court: Gentlemen, can we move along? I
Have a ease that is supposed to he starting this
morning, or continuing this morning. I don’t want
to waste any time if I don’t have to.
Offers of Counsel.
48
Mr. Canale: Your Honor, T have just put in a
phone call for a witness that is going to be here in
20 minutes. If you want to take a recess—I ’m sorry.
The Court: How many more witnesses do you
have ?
Mr. Canale: Just one, your 11 onor.
(Conference at the bench.)
The Court: Can we go on with anything else?
Mr. Canale: Your Honor, I have several other
documents that 1 would like to have marked for
identification while we are waiting.
(Thereupon the documents referred to hereafter
were marked Plaintiff’s Exhibits Nos. 3, 4 and 5
for identification.)
Mr. Canale: Your Honor, I offer into evidence
Exhibit 3 for identification which purports to be—
The Court: Hold it just a moment. Haven’t we
got some exhibit before the—
Mr. Canale: They are studying them now, your
Honor.
The Court: All right, go ahead.
Mr. Canale: —Plaintiff’s Exhibit 3 for identifica
tion which purports to be a piece of correspondence
from the Billings Insurance Agency, which Mr.
Miles has stipulated 1 need not produce the original
o f ; Plaintiff’s Exhibit 4, which is a piece of cor
respondence from the Jamestown Mutual Insurance,
home office communication file, a Xerox copy, and
Mr. Miles has stipulated I need not produce the
original; Exhibit 5, which is the original report o f
accident from the Billings Agency to Jamestown
Mutual, a Xerox copy, and T understand I need not
produce the original.
Offers of Counsel.
49
Mr. Miles: That is correct. I have no objection
to their introduction.
Mr. Canale: This doesn’t affect you fellows.
The Court: I am going to receive them in evi
dence; I will receive them in evidence subject to
review by counsel.
Mr. Canale: They say there is no objection to the
last three, your Honor.
(The documents previously marked Plaintiff’s
Exhibits Nos. 3, 4 and 5 for identification were re
ceived in evidence.)
Mr. Canale: Your Honor, as far as formal proof
is concerned I only have one witness left who will
be a very short one and he is on his way to the court
room now. I have no other formal proof at this
point and I ain prepared to rest with the exception
of any argument that the court may wish to hear,
but as far as evidence is concerned I have concluded
the case.
The Court: Mr. DeMarie and Mr. Katz, are you
submitting any evidence?
Mr. Katz: Do I what?
The Court: Are von submitting any evidence?
Mr. Katz: Not until T hear the plaintiff’s case.
Mr. Canale: With one exception, of course,
your Honor; I am asking for one more document,
the insurance policy of Public Service Mutual.
Mr. Miles: I was given a sample policy but, in
any event, T would want to join in the offer of that
particular policy in my part of the case too.
Mr. DeMarie: All right, we will stipulate that
the specimen that I gave to Mr. Miles this morning
is an exact copy of the contents of—
Offers of Counsel.
50
Mr. K atz: That is correct, Policy of Public
Service.
Mr. DeMarie; —of the policy issued to Gross
Plumbing Company. The only thing we have re
moved from that is the limits of coverage.
Mr. Canale: Well, your Honor, I think that we
should see the entire policy with any pertinent en
dorsements.
The Court: What is the reason for not having
the—
Mr. DeMarie: T don’t see where the limits of
coverage—
The Court: I am not talking about the limits of
coverage. What is the reason for—
Mr. Canale: T think we should see the whole
policy of Public Service Mutual.
Mr. DeMarie: T think that would serve the pur
pose as well as the original policy.
The Court: I am not asking you what you think,
T am asking you why you didn’t bring the original.
Mr. DeMarie: I brought the original.
Mr. Katz: We will give it to him then.
The Court: I will say that the coverage is im
material.
Mr. DeMarie: Well, there is the original.
Mr. Canale: Will you mark this, please.
(Thereupon the policy referred to above was
marked Plaintiff’s Exhibit No. 6 for identification.)
The Court: Short recess, gentlemen.
(Short recess.)
Mr. Canale: I have now received, your Honor,
Plaintiff’s Exhibit 6 for identification, which is the
Public Service Mutual Insurance Company policy.
Offers of Cmmsel.
51
Mr. Katz: I have no objection to it going into
evidence.
Tiie Court: Received.
(The policy previously marked Plaintiff’s Ex
hibit No. 6 for identification was received in evi
dence.)
Mr. Canale: T now offer all the exhibits, your
Honor, that have been marked for identification
into evidence.
Mr. Miles: No objection.
The Court: No objection!
Mr. Katz: I have none, sir.
The Court: Received in evidence.
(The policies previously marked Plaintiff’s Ex
hibits Nos. 1 and 2 for identification were received
in evidence.)
Mr. Canale: Your Honor, we just checked again
three or four minutes ago and the witness is on his
way, and with the exception of that bit of lay testi
mony Plaintiffs Kozdranski and Chapman rest.
Mr. Miles: Tf your Honor please, is it my under
standing that you are going to permit some brief
arguments of our legal position at the conclusion
here?
The Court: Well, first we have got to find out
when is the conclusion. We are waiting for one
witness and I would suggest to counsel that they
proceed with their arguments.
Mr. Miles: Well, I have some testimony to offer
at this time. I would be glad to go ahead.
The Court: Go ahead.
Mr. Miles: And then it would be my position that
I might argue something later.
Offers of Counsel.
52
The Court: All right,
Mr. Miles: Mr. Damon, -would you take the stand,
please.
C. Damon, for Deft., Direct.
CECTL DAMON, R. D. #1 , Remus Point, New York,
a witness called by and on behalf of the Defendant James
town Mutual Insurance Company, was duly sworn and
testified as follows:
Direct Examination by Mr. Miles:
Q. Who is your employer, Mr. Damon? A. My current
employer or at the time?
Q. Your current employer. A. Unigard Insurance.
Q. T see, and how long have you been employed by
Unigard? A. Since January 1, 1971.
Q. And prior to that by whom were you employed?
A. Jamestown Mutual Insurance Company.
Q. What is the present relationship of Jamestown
Mutual Insurance Company with Unigard Insurance? A.
Unigard Insurance and Jamestown Mutual affiliated—
T believe it was April 1, 1971.
Q. And prior to that affiliation at that date you were
employed by Jamestown? A. That’s right.
Q. Cor bow many years were you employed by James
town? A. Very close to 35 years.
Q. 1 see, and what department are you presently in,
sir? A. I am in underwriting; underwriter.
Q. How long have you been in that particular phase of
your employment? A. Twelve years.
Q. Now, will you tell us what the significance of being
in the underwriting department is; what your duties are
and what— A. T have been the underwriting supervisor
53
and I handle the underwriting of policies, the receiving
of applications, issuing the policies and the handling of
changes, etc.
Q. Now, are you familiar with the general liability
policy and the general automobile policy which were issued
and which have been marked in evidence in this case, and
I show you these exhibits, sir, issued by your company,
sir. A. 1 am.
Q. Are, you familiar with the contents of those policies,
sir! A. I am.
Q. Now, I also direct your attention, Mr. Damon, to an
exhibit marked 4 in evidence purporting to be a home
office communication from Jamestown Mutual Insurance
Company. Have you previously seen a copy of that ex
hibit? A. I have.
Q. So you are familiar with the contents of it ! A.
That’s right.
Q. Now, sir, do you have with you the request of
February 17 referred to in that communication? A. I do.
Q. Yon do. Is it in the briefcase? A. In my brief
case.
Q. Would you go and get that for us, please.
Mr. Katz: If the court pleases, I assume that
you are taking this, sir, as not binding upon the
Defendant Public Service Mutual Insurance Com
pany.
The Court: You have no argument on that.
Mr. Miles: No.
The Court: That is correct.
Mr. Katz: Thank you.
Mr. Miles: Would you mark this for identifica
tion, please.
C. Damon, for Deft., Direct.
54
(Thereupon the document referred to hereafter
was marked Defendant’s Exhibit A for identifica
tion.)
Mr. Katz: May I see it?
Mr. Miles: Proceed, Mr. Miles.
Mr. K atz: I have no objection.
Mr. Miles: Tf your Honor please, I think we can
save some time. 1 am going to otter Defendant s
Exhibit A for identification, purporting to be a com
munication from Hillings Insurance to the James
town Mutual Insurance Company, directly into evi
dence. 1 understand there is no objection.
The Court: Received in evidence.
(The document previously marked Defendant’s
Exhibit A for identification was. received in evi
dence.)
By Mr. Miles:
Q, Now, Mr. Damon, the exhibit just admitted into evi
dence, Exhibit A, was directed to the Jamestown Mutual
Insurance Company, and 1 am asking you if Plaintiff’s Ex
hibit 4 in evidence is a response to that and one other
document? A. May I see that?
Mr. Miles: The court has it over there.
A. (Cont’d.) That is a reply, uh-huh.
Q. All right. Now, sir, will you tell us specifically
whether there was coverage in any area for the operation
of the back hoe under the comprehensive liability policy
as referred to in that particular exhibit!
Mr. K atz: That is objected to, if the court pleases.
The exhibit speaks for itself. This witness is not
qualified to construe that exhibit, sir.
Mr. Miles: Well, it was my understanding—
('. Damon, for Deft., Direct.
55
Mr. Katz: That’s the court’s function in this case.
Mr. Miles: ■—that Mr. Katz wasn’t making any
comment about this. It is not claimed to be binding
upon him.
The Court: Overruled.
Mr. Miles: Would you want the question re
phrased ?
The Witness: Yes.
Mr. Miles: Will you read the question., please.
(Question read.)
The Court: Of course, this is his opinion.
Mr. Miles: lid s is Ms opinion, yes sir.
A. The comprehensive general liability policy covers
the full operation of the insured and it covers mobile
equipment. Now, a back hoe such as is involved here is
mobile equipment and would be covered under the general
liability policy in normal operation. However, there is an
exclusion in the general liability policy excluding coverage
for loading and unloading of automobiles, which is the case
in this instance.
Mr. Katz: I object to that and I move to strike
out the latter part of the witness’s answer. It calls
for a conclusion.
The Court: Well, it may, counsel, but T don’t see
bow you are involved in it.
Mr. Katz: Except, he says it covers loading and
unloading.
The Court: Tt appears to me that this is more an
argument of law rather than a fact. These are going
to be submitted to me. Now, what it covers T think
is primarily a question of law but T will permit the
C. Damon, for Deft., Direct.
answer.
56
By Mr, Miles:
Q. Now, sir, I ask that you indicate to the court that
area of the comprehensive liability policy which contains
this exclusion so that the court may make a note of that
part of the policy which it should direct its attention to
on that particular point.
The Court: Why don’t leave that up to your
argument ?
Mr. Miles: Well, it’s a little lengthy. T just
thought 1 would save the court time.
The Court : You will save me time by giving me
your arguments on the law and any facts you care
to give me. I don’t feel this is a fact, f feel it is a
question of law.
Mr. Miles: That is all, Mr. Damon. Wait one
minute, please.
CROSS EXAMINATION by Mr. Canale:
Q. Well, just so I understand your position, sir, you
agree that by definition the back hoe that is owned by
your insured and was being operated by his driver at the
time of this accident is not an automobile within the def
inition of the comprehensive general liability policy, is
that correct! A. No, I said that it is covered while in
operation except for the exclusion.
Q. Well, 1 am talking about the definitions under the
policy, it is not an automobile, is it? A. Under normal
circumstances it is not an automobile.
Q. All right, and do you agree, sir, that it comes within
the definition in the comprehensive general liability policy
of mobile land equipment! A. That’s right.
Q. And do you agree that within that definition this
back hoe is specifically covered under your policy generally?
A. That’s right.
0. Damon, for Deft., Cross.
57
Q. And within the definition of the comprehensive gen
oral policy it is not an automobile, is it! A. That’s right.
Mr. Canale: 0 . K., thank you.
Mr. Miles: Thanks, Mr. Damon. You may come
down from the stand.
(Witness excused.)
Mr. Miles: T have no further witnesses, your
! lonor.
Mr. Canale: May I proceedf My witness is here
finally, your Honor, and I appreciate your indul
gence. Mr. Guthrie, please.
A. E. Guthrie, for Pltf., Direct.
ANTHONY E. GUTHRIE, 7712—3th Avenue, Niagara
Falls, New York, a witness called by and on behalf of the
plaintiff, was duly sworn and testified as follows:
Direct Examination by Mr, Canale:
Q. By whom are you employed, sir! A. Walter S.
Kozdranski Construction Company.
Q. In what capacity are you employed by them! A.
Vice-president and office manager.
Q. And what are your duties as vice-president and
office manager! A. Setting up a work schedule, taking
care of payrolls, keeping costs on various jobs.
Q. Do they include dispatching of your people and
equipment to various job sites? A. Yes, it does.
Q. Do they include seeing that sufficient equipment is
on the job site to complete the particular job assignment?
A. That is right.
Q. And are you familiar, sir, with a job that was
assigned to your company on June 15, 1971 at the Stauffer
Chemical Company! A. Yes, T am.
58
Q. Are you aware of what that job was! A. It was—
we were called by the Stauffer Chemical Company to supply
a machine and a truck to clean out a pit at their premises.
Q. Now, did you send a piece of your equipment to that
job site! A. Yes, I did.
Q. What equipment of yours did you send! A. A
trencher-back hoe.
Q. Was that the piece of equipment that was being oper
ated by Mr. Chapman at that time? A. Yes, it is.
Q, And Mr. Chapman is your employee! A. Yes.
Q. And was employed by you and in the course of his
employment at that time? A. Yes, he was.
Q. Did you arrange for any other equipment to be at
that job site? A. Yes, T did. At the time all my dump
trucks were tied up so T called dross Plumbing and hired
his dump truck—
Mr. Katz: Object to that as calling for a conclu
sion.
The Court: Sustained.
By Mr. Canale:
Q. Well, will you tell us what arrangements you made.
Did you make an arrangement with the dross Plumbing
with reference to some of the equipment? A. Yes, 1 called
the night before—
Q. All right, and what arrangements did you make?
A. — and I hired Mr. dross’s—-
Mr. Katz: Object to that and ask to strike it out
as calling for a conclusion.
Mr. Canale: He is telling what he did. That is
language peculiar to the business.
The Court: Well, “ hired”—I sustain the objection.
Did yon have negotiations with Mr. dross?
A. E. Guthrie, for Pltf,, Direct.
59
The Witness: I had a verbal agreement.
The Court: Tell us what the verbal—
By Mr. Canale:
Q. What was the agreement? A. I asked him to send
his dump truck down to Stauffer Chemical and to work
with my machine. When the job was done he would
present a—
The Court: What did he say?
The Witness: lit; would supply the truck.
Q. And was the truck in fact supplied pursuant to that
arrangement? A. Yes, it was.
A. E. Guthrie, for Pltf., Cross.
Q. And was this a truck owned by Gross Plumbing
A. Yes, it was.
Q. And being operated and driven by their employee?
A. Yes, it was.
Q. And were you billed a specific amount for the use
of that truck? A. Yes, I was sent a bill at the end of the
month for so many hours on that job.
Q. Did you in fact receive a bill from Gross? A. Yes,
Q. And did the bill include the use of the truck and the
man, the driver, is that correct? A. Yes, it did.
Q. Was that paid pursuant to vour agreement? i
Yes, it was.
Mr. Canale: That’s all.
Mr. Miles: T have no questions.
Mr. Grossman: No questions.
CROSS EXAMINATION by Mr. Katz:
Q. Mr. Guthrie, you called Gross Plumbing, right? A.
That’s right.
Q. You told him you needed a truck? A. That’s right
Q. Yours were all tied up? A. Yes.
I did.
60
Q. You told him where to take the truck? A, Yes.
Q. Did you ask for driver! A. Did I ask for a driver!
Q. With the truck. A. Yes, I did.
Q. Did you in any way, sir, in your talks—by the way
—withdraw it. Whom did you talk with at Gross Plumb
ing! A. Tf my memory serves me right it was the
secretary.
Q. Was this a written arrangement or an oral arrange
ment! A. It was an oral arrangement.
Q. The truck got to the job? A. Yes, it did.
Q. Who maintained the truck, sir, under this arrange
ment? Assuming it was damaged on the job. Who would
take care of repairs?
Mr. Canale: I object to that.
Mr. Miles: Objection.
Mr. Canale: That is irrelevant, immaterial
Mr. Katz: T will withdraw that.
Rv Mr. Katz:
Q. Who took care of maintaining this truck under this
arrangement?
Mr. Miles: Objection.
The Court: First let’s establish if there was— I
would permit the question as to whether there was
any agreement concerning it.
Q. Yes. Was there any agreement insofar as main
tenance was concerned of this truck between your company
and the Gross company? A. No, there wasn’t—There was
just—
Q. Did Kozdranski have any obligation, sir, under this
agreement for repairs or maintenance of this truck? A.
No.
Q. Who supplied the gasoline and oil? A. Mr. Gross.
A. E, Guthrie, for Pltf., Cross.
61
Q. Did Kozdranski have any obligation under this
agreement to supply any gas or oil! A. No.
Q. Did Kozdranski have anything to do with the way
or the manner in which this truck was operated! A, No.
Q. All you were interested in, your company was inter
ested in, was that it get down on the job. A. That is
correct.
Q. And that it remove sludge from the Stauffer Chem
ical Company plant, right! A. Whatever the job was,
right.
Q. Now, the driver of the truck, whose payroll was he
on? A. Mr. Gross’s.
Q. Mr. Gross’s! A. Yes.
Q. Was the driver at any time, sir, from the time you
made this arrangement until the Gross truck was no longer
needed, on the payroll of Kozdranski? A. No.
Q. Kozdranski carry Workmen’s Compensation! A.
Yes, he did.
Q. Was the driver of the truck included in the Work
men’s Compensation policy, sir? A. Not to my knowledge.
Q, Not on Kozd ran ski’s Workmen’s Compensation
policy, would that be correct! A. That’s right.
Q. Now, when the truck—withdraw that for the mo
ment. You would agree with me, sir, that while the truck
was there, there were instances where the truck was loaded
and it left the premises— A. Right.
Q. —to take the sludge some place? A. Right.
Q. And you had one employee on the job. Chapman!
A. That’s right.
Q. Have anybody else on the job? A. No.
Q. Did Kozdranksi or any of its employees to vour
knowledge direct as to where the driver was to take the
sludge? A. No.
A, E. Guthrie, for Pltf., Cross.
62
Q. Did anybody in Kozdranski’s employ, sir, as far as
you know give any directions to the driver how to operate
the truck! A. Not to my knowledge.
Q. By the way, while the truck was on the premises to
your knowledge did the driver have anything to do with
the loading of the truck with sludge or was that left with
your man, Chapman! A. Not to my knowledge. 1 had
no idea what came—
Mr. Canale: You weren't there; you don’t know
anything about what went on.
Mr. Katz: ! am asking if he knows, sir.
A. (Cont’d.) That is what ! am saving, 1 didn’t—
Q. You don’t know! A. No.
Q. Now, did Kozdranski ever take possession of this
truck under this agreement? A. No.
Mr. Miles: Objection.
Mr. Canale: Well, that is certainly a legal con
clusion, your Honor. T object to it.
The Court: Sustained.
Mr. Canale: That is certainly going far afield.
The Court: Sustain your objection.
Mr. Canale: This is not a proper matter of cross
examination. 1 object to it.
Mr. Katz: Well, this is a question of what the
arrangements were.
The Court: f sustained your objection, Mr.
Canale. Proceed with the examination.
Mr. Katz: All right.
By Mr. Katz:
Q. I think you said this was an oral arrangement? A.
Yes.
A. E, Guthrie, for Pltf,, Cross.
63
Q. Is that right ? And was your arrangement with
Gross that you would he hilled, your company would be
hilled, for the number of hours the truck was used, includ
ing the driver! A. That is correct.
Q. And your company was billed for the hours that
the truck was used! A. Yes.
Q. With the driver! A. Yes, it was.
Q. And you paid Gross? A. Yes, we did.
Mr, Katz: Thank you, sir, f have no further ques
tions.
Mr. Miles: I have nothing.
The Court: Mr. Canale?
Mr. Canale: Nothing further.
The Court: Nothing further. Thank you, Mr.
Guthrie.
(Witness excused.)
Mr. Canale: Plaintiff rests, your Honor.
Mr. Miles: Jamestown Mutual Insurance Com
pany rests, your Honor.
Mr. Katz: Defendant Public Service rests, your
Honor.
Mr. Grossman: Jensen rests, your Honor.
The Court: Five minutes recess and then I will
hear the arguments.
(Short recess,)
A. E. Guthrie, for Pltf., Cross.
64
Stipulation Waiving Certification.
(Same Title.)
IT IS HEREBY STIPULATED, pursuant to Rule 5532
of the Civil Practice Law and Rules, that the foregoing
consists of true and correct copies of the Notice of Appeal,
the Judgment appealed from, the Decision of the Court,
the Summons and Complaint, Answers of the appearing
parties, and Reply of the defendant, Public Service Mutual
Insurance Co., to the affirmative defense and cross claim
of the Jamestown Mutual insurance Company, and cer
tification of this Record on Appeal by the Clerk of tin?
County of Niagara is hereby waived.
MILES, COCH RANE, CROSSE, ROSSETTI
& HARPER,
By R aymond T. Minus,
Attorneys for Jamestown Mwt. Ins. Co.
RICE, RICE, HIJSTLEBY & CHASE,
By .......... ...........................................
Attorneys for Walter S. Kozdranski Co.
(1ROSSMAN & LEVINE,
By ............................................................................
Attorneys for Carolyn 8. Jensen, Admx.
DIXON, R e MARTE & SZYMONIAK,
By . ...........................................................................
Attorneys for Gross Plumbing & Heating Co.,
Inc. and Public Service Mut. Ins. Co.
ADDITIONAL PAPERS TO COURT OF APPEALS.
65
COURT OP APPEALS,
State of New Y ork.
W alter S. K ozdranski Co., Inc. and David E. Chapman,
Plaintiffs-Respondents,
vs.
Jamestown Mutual Insurance Company,
Defendant-Appellant-Respondent,
Carolyn S. Jensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased,
Defendant-Respondent,
Gross P lumbing & H eating Co., Inc.,
Defendant-Appellant,
and
P ublic Service Mutual Insurance Co.,
Defendant-Appellant-Respondent.
Statement Pursuant to Civil Practice Law and Rules,
Section 5531.
1. The index number of the above ease in the court
below is 18880.
2a. The full names of the original parties are set forth
in the original title of this lawsuit as follows: Walter S.
Kozdranski Co., Inc., Plaintiff, vs. Jamestown Mutual
Insurance Company; Carolyn S. Jensen, as Administra
trix of the Estate of Walter M. Jensen, Deceased; Gross
Plumbing & Heating Co., Inc.; and Public Service Mutual
Insurance Co., Defendants.
66
Statement Pursuant to Civil Practice Law and Rules,
Section 5531
2b. Donald E. Chapman was added as a party plaintiff
by motion made on April 19, 1972, prior to the giving
of testimony herein.
3. The lawsuit was commenced in the Supreme Court,
Niagara County.
4. The lawsuit was commenced March 11, 1972, and the
answer of the defendant, Jamestown Mutual Insurance
Company, was served March 24, 1972. The amended an
swer of the defendant, Jamestown Mutual Insurance Com
pany, was served on March 29, 1972. No records are
available to indicate when the answers of the other parties
to the complaint were served.
5. The action is one for a declaratory judgment that
two policies of insurance issued by Jamestown Mutual
Insurance Company to the plaintiff, Walter S. Kozdranski
Co., Inc., afforded coverage to the plaintiff in a lawsuit
brought against the plaintiff in the Supreme Court,
Niagara County by Carolyn S. Jensen, as Administratrix
of the Estate of Walter M. Jensen, Deceased. The plain
tiff, Walter S. Kozdranski Co., Inc., further sought in
the declaratory judgment action an order requiring James
town Mutual Insurance Company to bring in Donald E.
Chapman as a party defendant in the lawsuit for dam
ages in the Supreme Court, Niagara County, and for a
direction that said Chapman, -when brought in as a party
defendant, was entitled to the coverage of a policy issued
by the defendant, Public Service Mutual Insurance Co.
6. The appeal to the Court of Appeals is from (1) an
order of reversal of the Appellate Division, Fourth
Department entered on November 30, 1972, (2) an order
of said Appellate Division entered on December 12, 1972
amending the aforesaid order of said Court, (3) an order
of said Appellate Division entered on February 16, 1973
denying a motion to amend its opinion.
7. The appendix method of appeal is not being used
herein.
I
Notice o f Appeal to the Court o f Appeals by Defend
ant Jamestown Mutual Insurance Company, From an
Order Entered December 12, 1972, Amending a
Previous Order Entered November 30, 1972.
STATE OF NEW YORK, SUPREME COURT,
County of Niagara.
67
W alter S. K ozdranski Co., Inc. and David E. Chapman,
vs.
Plaintiffs,
J amestown Mutual I nsurance Company; Carolyn S.
Jensen, as Administratrix of the Estate of Walter
M. Jensen, Deceased; Gross P lumbing & Heating Co.,
Ine. and P ublic Service Mutual Insurance Co.,
Defendants.
Index No. 18880
Sirs:
Please Take Notice, that the defendant, Jamestown
Mutual Insurance Company, hereby appeals to the Court
of Appeals from the order of the Appellate Division of
the Supreme Court, Fourth Judicial Department, duly
entered herein on the 12th day of December, 1972, which
order amended the previous order of the Appellate
Division of the Supreme Court, Fourth Judicial Depart
ment entered November 30, 1972, by amending the opinion
of the said Court handed down November 30, 1972, and
further confined the determination of said Court to the
N otice o f A ppea l to the Court o f A ppeals by D efendant
Jam estown Mutual Insurance Company, F rom an Order
E ntered D ecem ber 12,1972, Am ending a P revious Order
E ntered N ovem ber 30, 1972
issue only with reference to the coverage of Public Serv
ice Mutual Insurance Co.
Dated: Buffalo, New York
January 10, 1973
T o :
M iles, Cochrane, Crosse & R ossetti
Attorneys for Defendant Jamestown Mu
tual Insurance Company
Office and Post Office Address
1560 Statler Hilton Hotel
Buffalo, New York, 14202
Phone: (716) 852-3600
Rice, Rice, Hustleby & Chaee
Brownstein, Canale, Madden, Burke &
Siegel, Of Counsel
Attorneys for Plaintiffs
Office and Post Office Address
530 Walbridge Building
Buffalo, New York, 14202
Dixon, DeMarie & Szymoniak
Attorneys for Defendants, Gross Plumbing
& Heating Co., Inc. and Public Service
Mutual Insurance Co.
Office and Post Office Address
610 Walbridge Building
Buffalo, New York, 14202
69
N otice o f A ppea l to the Court o f A ppeals by D efendant
Jam estown Mutual Insurance Company, F rom an Order
E ntered D ecem ber 12,1972, Am ending a Previous Order
E ntered N ovem ber 30, 1972
Grossman & Levine
Attorneys for Defendant, Carolyn S, Jensen,
as Administratrix of the Estate of
Walter M. Jensen, Deceased
Office and Post Office Address
8612 Buffalo Avenue
Niagara Falls, New York, 14304
Clerk of Niagara County
Niagara County Court House
Lockport, New York
Clerk of Appellate Division
Supreme Court, Fourth Judicial Department
501 Hall of Justice, Civic Center Plaza
Rochester, New York, 14614
70
Notice o f Appeal to the Court o f Appeals by Defend
ant Public Service Mutual Insurance Company, From
an Order Entered December 12, 1972, Amending
a Previous Order Entered November 30, 1972.
STATE OF NEW YORK, SUPREME COURT,
County of Niagara.
W alter S. K ozdranski Co., Inc. and David E. Chapman,
vs.
Plaintiffs,
Jamestown Mutual Insurance Company, Carolyn S.
J ensen, as Administratrix of the Estate of Walter
M. Jensen, Deceased; Gross P lumbing & H eating Co.,
Inc. and Public Service Mutual I nsurance Company,
Defendants.
Index No. 18880
Sirs :
Please Take Notice, that the defendant, Public Service
Mutual Insurance Company, hereby appeals to the Court
of Appeals from the order of the Appellate Division of
the Supreme Court, Fourth Judicial Department, duly
entered herein on the 12th day of December, 1972, which
order amended the previous order of the Appellate Di
vision of the Supreme Court, Fourth Judicial Depart-
71
N otice o f A ppea l to the Court o f A ppeals by D efendant
Public S ervice Mutual Insurance Com pany, F rom an
Order E ntered D ecem ber 12, 1972, Am ending a Previous
Order E ntered N ovem ber 30, 1972
ment entered November 30, 1972, and from each and
every part of said order.
Dated at Buffalo, New York
January 16, 1973.
To:
DIXON, DeMARIE & SZYMONIAK
Attorneys for Defendant, Public Service
Mutual Insurance Company
Office & P. 0 . Address
610 Walbridge Building
Buffalo, New York 14202
Phone: (716) 856-0024
Rice, Rice, Hustleby & Chaee
Brownstein, Canale, Madden, Burke &
Siegel, of Counsel
Attorneys for Plaintiffs
Office & P. O. Address
530 Walbridge Building
Buffalo, New York 14202
Miles, Cochrane, Grosse & Rossetti
Attorneys for Defendant, Jamestown
Mutual Insurance Company
Office & P. O. Address
1560 Statler Hilton Hotel
Buffalo, New York
Grossman & Levine
Attorneys for Defendant, Carolyn S. Jensen,
as Administratrix of the Estate of Walter
M. Jensen, Deceased
Office & P. O. Address
8612 Buffalo Avenue
Niagara Falls, New York 14304
72
Notice of Appeal to the Court of Appeals by Defendant
Public Service Mutual Insurance Company, From an
Order Entered December 12,1972, Amending a Previous
Order Entered November 30, 1972
Clerk of Niagara County
Niagara County Court House
Lockport, New York
Clerk of Appellate Division
Supreme Court, Fourth Judicial Department
501 Hall of Justice, Civic Center Plaza
Rochester, New York 14614
73
Notice o f Appeal to Court o f Appeals by Defendant
Public Service Mutual Insurance Company, From
an Order o f Reversal Entered November 30, 1972.
SUPREME COURT OF THE STATE OF NEW YORK,
County of Niagara.
[S a m e T it l e .]
Please Take Notice that defendant Public Service Mu
tual Insurance Company appeals to the Court of Appeals
from the order of reversal of the Appellate Division of
the Supreme Court, Fourth Department, in this action
dated November 30, 1972.
Dated: Buffalo, New York
April 11, 1973.
DIXON, DeMARIE & SZYMONIAK
Attorneys for Defendant Public Service
Mutual Insurance Company
T o :
Rice, Rice, Ilustleby & Chaee
Brownstein, Canale, Madden, Burke, &
Siegel, of Counsel
Attorneys for Plaintiffs
Miles, Cochrane, Grosse & Rossetti
Attorneys for Defendant Jamestown
Mutual Insurance Company
Grossman & Levine
Attorneys for Defendant Carolyn S. Jensen,
as Administratrix of the Estate of
Walter M. Jensen, Deceased
Clerk of the Supreme Court
Niagara County
74
STATE OF NEW YORK, SUPREME COURT,
County of Niagara.
[S ame T itle .]
Please Take Notice that defendant, Gross Plumbing &
Heating Co., Inc., appeals to the Court of Appeals from
the order of reversal of the Appellate Division of the
Supreme Court, Fourth Department, in this action dated
November 30, 1972.
Dated: Buffalo, New York
May 2, 1973.
DIXON, DeMARIE & SZYMONIAK
Attorneys for Deft., Gross Plumbing &
Heating Co., Inc.
T o :
Rice, Rice, Hustleby & Chace
Brownstein, Canale, Madden, Burke &
Siegel, of Counsel
Attorneys for Plaintiffs
Miles, Cochrane, Grosse & Rossetti
Attorneys for Deft., Jamestown
Mutual Insurance Company
Grossman & Levine
Attorneys for Deft., Carolyn S. Jensen,
as Administratrix of the Estate of
Walter S. Jensen, Deceased
Clerk of the Supreme Court
Niagara County
Loekport, New York
Notice of Appeal to the Court of Appeals by Defend
ant Gross Plumbing & Heating Co., Inc., From an
Order o f Reversal Entered November 30, 1972.
75
Notice o f Appeal to the Court o f Appeals by Defend
ant Jamestown Mutual Insurance Company, From an
Order o f the Appellate Division Denying Motion to
Amend Opinion.
STATE OF NEW YORK, SUPREME COURT,
County op Niagara.
[Same T itle.]
Sirs :
Please Take Notice, that the defendant, Jamestown
Mutual Insurance Company, hereby appeals to the Court
of Appeals from the Order of the Appellate Division of
the Supreme Court, Fourth Judicial Department, denying
the motion of Jamestown Mutual Insurance Company
to amend its opinion handed down with its opinion of
November 30, 1972.
Dated: Buffalo, New York
May 4, 1973
Miles, Cochrane, Crosse & R ossetti
Attorneys for Defendant, Jamestown Mu
tual Insurance Company
To:
Rice, Rice, Hustleby & Chace
Brownstein, Canale, Madden, Burke &
Siegel, Of Counsel
Attorneys for Plaintiffs
Dixon, DeMarie & Szymoniak
Attorneys for Defendants, Gross Plumbing
& Heating Co., Inc. and Public Service
Mutual Insurance Co.
Notice of Appeal to the Court of Appeals by Defendant
Jamestown Mutual Insurance Company, From an Order
of the Appellate Division Denying Motion to Amend
Opinion
Grossman & Levine
Attorneys for Defendant, Carolyn S. Jensen,
as Administratrix of the Estate of
Walter M. Jensen, Deceased
Clerk of Niagara County
Niagara County Court House
Lockport, New York
Clerk of Appellate Division
Supreme Court, Fourth Judicial Department
501 Hall of Justice, Civic Center Plaza
Bochester, New York, 14614
76
n
/
/
Order of Reversal Appealed From, Entered November
30, 1972.
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth J udicial Department.
Present:
Goldman, P.J., Marsh, Moule, Henry, JJ.
W alter S. K ozdranski Co., Inc. and David E. Chapman,
Respondents-Appellants,
vs.
Jamestown Mutual Insurance Company,
Appellant-Respondent,
and
Carolyn S. J ensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased, Gross P lumbing & H eat
ing Co., Inc. and P ublic Service Mutual I nsurance Co.,
Respondents.
The above named Jamestown Mutual Insurance Com
pany, a defendant in this action, having appealed to
the Appellate Division of the Supreme Court, Fourth
Department, from a judgment of the Supreme Court,
entered in the office of the Clerk of the County of Niagara,
on the 22nd day of May, 1972 and Walter S. Kozdranski
Co., Inc. and David E. Chapman, plaintiffs, having ap
pealed from said judgment, and said appeals having
been argued by Mr. Raymond T. Miles, of counsel for
the appellant-respondent, and by Mr. John F. Canale,
of counsel for the respondents-appellants, and by Mr.
78
Order of Reversal Appealed From, Entered
November 30, 1972
Anthony J. DeMarie, of counsel for the respondents, Gross
Plumbing and Public Service Mutual Ins., and submitted
by Mr. Stanley Grossman, of counsel for respondent
Jensen, and due deliberation having been had thereon
It is hereby Ordered That the judgment so appealed
from be, and the same hereby is unanimously reversed
on the law without costs, and it is Adjudged and De
clared, That the automobile policy of the Public Service
Mutual Insurance Company affords coverage to plain
tiffs as a result of the accident in question.
Opinion by Goldman, P.J., which is hereby made a part
hereof.
Enter.
LESTER A. FANNING
Entered: November 30, 1972.
Order Appealed From Amending Opinion.
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth J udicial D epartment.
Present:
Goldman, P.J., Del Veeehio, Marsh, Moule, JJ.
W alter S. K ozdranski Co., Inc. and David E. Chapman,
B espondents-App ellants,
vs.
J amestown Mutual I nsurance Company,
Appellant-Respondent,
and
Carolyn S. J ensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased, Gross P lumbing & H eat
ing Co., Inc. and P ublic Service Mutual Insurance Co.,
Respondents.
The respondents-appellants having moved before this
court upon the return of a show cause order granted by
the Hon. Harry D. Goldman, for an order amending the
Opinion herein in accordance with the statements made
to the court at the time of the oral argument of this
appeal and directing that the Opinion be confined to a
determination of the issue only with reference to the
coverage of Public Service Mutual Insurance Co., and
for other relief,
Now, upon reading and filing the affidavit of John F.
Canale, sworn to the 4th day of December, 1972, the
80
Order Appealed From Amending Opinion
said show cause order with proof of service thereof,
and after hearing Mr. John F. Canale, of counsel for
the respondents-appellants, and Mr. Raymond T. Miles,
of counsel for the appellant-respondent, and Mr. Anthony
J. DeMarie, of counsel for the respondents, Gross Plumb
ing and Public Service Mutual Insurance Co., and due
deliberation having been had thereon,
It is hereby Ordered, That said motion be, and the same
hereby is granted, and the Opinion is amended nunc
pro tunc as of November 30, 1972. '........... *•
Enter.
LESTER A. FANNING
Entered: December 12, 1972
Lester A. F anning,
Clerk.
f the Appellate Division Denying Motion o f
Defendant Jamestown Mutual Insurance Company,
to Amend Opinion.
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth J udicial Department.
Present:
Goldman, P.J., Marsh, Monle, Henry, JJ.
W alter S. K ozdranski Co., Inc. and David E. Chapman,
jRespondents-Appellants,
vs.
Jamestown Mutual I nsurance Company,
Appellant-Respondent,
and
Carolyn S. Jensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased, Gross P lumbing & H eat
ing Co., Inc. and P ublic Service Mutual Insurance Co.,
Respondents.
The above named Jamestown Mutual Insurance Com
pany, appellant-respondent herein, having duly moved
before this Court for an order granting said appellant-
respondent amendment of the Opinion, heretofore decided
November 30, 1973,
Now, after reading and filing the affidavit of Raymond
T. Miles sworn to the 10th day of January, 1973, the
notice of said motion, together with proof of due service
Order of the Appellate Division Denying Motion of De
fendant Jamestown Mutual Insurance Company to
Amend Opinion
thereof upon counsel for the opposing party, and the
opposing affidavit of John F. Canale, sworn to the 23rd
day of January, 1973, and due deliberation having been
had thereon,
It is hereby Ordered, That said motion be, and the
same hereby is denied.
Enter.
LESTEB A. FANNING
Entered: February 16, 1973.
Lester A. F anning,
Clerk.
83
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth Department.
Opinion of the Appellate Division, Fourth Department*
W alter S. K ozdranski Co., Inc. and David E. Chapman,
Respondents-Appellants,
vs.
Jamestown Mutual I nsurance Company,
Appellant-Respondent,
and
Carolyn S. J ensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased; Gross P lumbing & H eat
ing Co., Inc. and P ublic Service Mutual Insurance Co.,
Respondents.
#657/1972
Argued: October 18, 1972
Decided: November 30, 1972
Present:
Hon. Harry D. Goldman,
Presiding Justice,
Hon. John S. Marsh,
Hon. Reid S. Moule,
Hon. Frederic T. Henry,
Associate Justices.
Appeal by the defendant, Jamestown Mutual Insurance
Company, from a judgment of Niagara Trial Term,
Kronenberg, J., adjudging that it is obligated to provide
coverage to the plaintiff.
84
Cross appeal by plaintiffs from the same judgment
which relieves the Public Service Mutual Insurance Co,
of any obligation to provide coverage.
Judgment entered May 22, 1972.
Appearances:
Miles, Cochrane, Grosse, Rossetti & Harper, 1560 Statler
Hilton Hotel, Buffalo, New York 14202, Attorneys for
Defendant-Appellant Jamestown Mutual Insurance Co.
(Raymond T. Miles, Esq., of Counsel)
Rice, Rice, Hustleby & Chace, 44 Falls Street, Niagara
Falls, New York, Attorneys for Respondents-Appellants
Walter S. Kozdranski Co., Inc. and David E. Chapman.
(Brownstein, Canale, Madden, Burke & Siegel, 530 Wal-
bridge Building, Buffalo, New York 14202, John F. Canale,
Esq. of Counsel)
Grossman & Levine, 8612 Buffalo Avenue, Niagara
Falls, New York 14304, Attorneys for Defendant-Re
spondent Carolyn S. Jensen. (Stanley Grossman, Esq.,
of Counsel)
Dixon, DeMarie & Szymoniak, 610 Walbridge Building,
Buffalo, New York 14202, Attorneys for Defendants-
Respondents Gross Plumbing & Heating Co., Inc. and
Public Service Mutual Ins. Co. (Anthony J. DeMarie,
Esq., of Counsel)
Goldman, P .J .:
The issue here presented is whether the plaintiffs are
covered by the comprehensive general liability policy of
the defendant Jamestown Mutual Insurance Company
(Jamestown), or by the automobile liability policies of
defendant Jamestown and defendant Public Service Mu
tual Insurance Company (Public Service). Both the
plaintiffs and the defendant Jamestown appeal from the
judgment which declared that plaintiff Walter S. Kozdran-
Opinion of the Appellate Division, Fourth Department
85
ski Co., Inc. (Kozdranski) was entitled to coverage under
Jamestown’s comprehensive general liability policy but
was not covered under the automobile policies of either
Jamestown or Public Service.
Prior to June 15, 1971, Kozdranski contracted with
the Stauffer Chemical Company (Stauffer) to supply a
baekhoe and truck to clean out a sludge pit on Stauffer’s
premises. On June 15, 1971 a baekhoe owned by Koz
dranski was moved to Stauffer’s sludge pit, but Kozdran
ski had no dump truek available on that day. Therefore,
arrangements were made by Kozdranski with the Gross
Plumbing & Heating Co., Inc. (Gross) to supply a truck
to be used at the Stauffer site to assist Kozdranski’s
baekhoe operator, David E. Chapman, in removing the
sludge waste. While the bucket of the baekhoe was being
operated in the pit removing sludge, it struck a pipeline
which had been constructed and was maintained by Stauf
fer. The breaking or dislodging of the pipe caused gaseous
hydrogen chloride and silicon tetrachloride to escape and
they were breathed by one Walter M. Jensen, who died
from the inhalation. Jensen was a Stauffer employee
and was uninvolved with the pit-cleaning operation.
Carolyn S. Jensen commenced an action against the
plaintiffs-respondents Jamestown and Chapman alleging
that the negligent and careless operation of the baekhoe
caused the gases to escape and contaminate the air, caus
ing the death of her intestate, Walter M. Jensen.
The Jamestown comprehensive general liability policy,
which provided coverage against liability resulting from
the operation of a baekhoe, contains the following ex
clusions: “ This insurance does not apply: * * * (b) to
bodily injury or property damage arising out of the
ownership, maintenance, operation, use, loading or un
loading of (1) any automobile or aircraft owned or oper
ated by or rented or loaned to the named insured.”
Opinion of the Appellate Division, Fourth Department
86
The Jamestown automobile policy issued to Kozdran-
ski provides coverage for bodily injury when such injury
is caused by an occurrence “ arising out of the ownership,
maintenance or use, including loading and unloading, of
any automobile * * With respect to a hired auto
mobile or a non-owned automobile, the automobile in
surance constitutes “ excess insurance over any other valid
and collectible insurance available to the insured” .
The Public Service automobile policy, which afforded
coverage to the Gross dump truck, listed as a person in
sured “ (e) any other person while using an owned auto
mobile or a hired automobile with the permission of the
named insured, provided his actual operation or (if he
is not operating) his other actual use thereof is within
the scope of such permission, but with respect to bodily
injury or property damage arising out of the loading
or unloading thereof, such other person shall be an in
sured only if he is: (1) a lessee or borrower of the
automobile, or (2) an employee of the named insured or
of such lessee or borrower;” .
The judgment appealed from declared that the only
policy which provided coverage for Kozdranski was the
General Liability Policy No. GLA 24865 which was issued
by Jamestown. The Trial Court also found that the
Gross vehicle “ was operated by its own employee and
was not in the possession or control of the Kozdranski
Company or its employees and that it was neither loaned
or borrowed by the Kozdranski Company and therefore
there is no responsibility on Public Service Mutual In
surance Company for coverage in this matter” .
The liability of the insurance carriers turns upon the
issue of whether there was a loading and unloading situa
tion at the time of the alleged negligence which caused
Jensen’s death. Jamestown contends that there was load
ing and unloading, that Public Service’s automobile
policy affords primary coverage and Jamestown’s auto
Opinion of the Appellate Division, Fourth Department
87
mobile policy affords secondary coverage and, finally,
that Trial Court erred in its declaration that Jamestown’s
comprehensive policy provided the sole coverage for the
accident. On the other hand, Public Service takes the
position that the liability falls upon Jamestown under
its comprehensive policy and that for various reasons,
which we will discuss, Public Service’s automobile policy
did not cover plaintiffs Kozdranski and Chapman. The
Trial Court found that since the Gross dump truck was
operated by its own employee and was not in the posses
sion or under the control of Kozdranski or its employees
and since it was neither loaned or borrowed by Kozdran
ski, there was no responsibility on Public Service for
coverage.
The leading and controlling decision in this State on
the question of “ loading and unloading” is Wagman v.
American Fidelity & Cas. Co. (304 N. Y. 490, 494). In
that case the Court of Appeals adopted the broad con
struction given the term in the majority of jurisdictions
which have passed upon this question. The principle
laid down in Wagman “ that ‘loading and unloading’ em
brace, not only the immediate transference of the goods
to or from the vehicle, but the ‘complete operation’ of
transporting the goods between the vehicle and the place
from or to which they are being delivered” clearly applies
to the operation in the instant case. Kozdranski’s oper
ator of the backhoe removed the sludge from the pit,
swung the bucket over to the Gross dump truck, which
Avas stationed where Kozdranski’s employee directed it
to be, and dropped the sludge from the bucket into the
truck. The loading was certainly not completed while
the sludge was still being deposited in the truck. The
noxious gases first appeared when the bucket of the
backhoe was picking up sludge in the pit. The Gross
truck was required to remain at the place it v?as situated
until it was completely loaded. Under the circumstances
the alleged negligence occurred during the loading and
Opinion of the Appellate Division, Fourth Department
88
unloading of the Gross truck. The application of the
“ loading and unloading” concept until the transaction
was completed, enunciated in Wagman, was reaffirmed
in Travelers Ins. Co. v. Saunders <$> Sons (18 A. D. 2d
126, aff’d 13 N. Y. 2d 1019), and Lamberti v. Anaco Equip-
Corp. (16 A. D. 2d 121).
The Jamestown comprehensive general policy covering
Kozdranski does not apply to bodily injury arising out of
the loading or unloading of an automobile “ rented or
loaned to the named insured” . The Trial Court found
that the truck being loaded was operated by a Gross em
ployee and was not in the possession or control of Koz
dranski or its employees. The Court concluded that
the truck was neither loaned to nor borrowed by Koz
dranski. However, the facts do not support that con
clusion.
On the day in question the vice-president and office
manager of Kozdranski made arrangements with Gross
for a dump truck to be present at the Stauffer site to
assist Chapman in removing sludge from Stauffer’s pit.
Gross was to bill Kozdranski at the end of the month
for the number of hours the truck and its driver were
at the Stauffer site. Stauffer had no contact of any
kind with Gross, its arrangement or contract was only
with Kozdranski and Stauffer apparently paid Kozdranski
to remove the sludge in any way and using any equip
ment it thought necessary.
Plaintiff Chapman, the backhoe operator, testified that
the only contact he had with the dump truck driver was
in directing him so that the sludge could be loaded most
effectively into the vehicle. The truck was required to
remain at the place of loading until the loading had been
completed and the truck was not full when the accident
occurred. In Travelers Ins. Co. v. Saunders & Sons,
supra (13 N. Y. 2d 1019), the converse was true, the
truck was obliged to remain at the place of unloading
Opinion of the Appellate Division, Fourth Department
89
concrete until it was completely empty. Both Chapman
and the Kozdranski vice-president testified that to their
knowledge the Gross truck driver had not been told where
to take the sludge once the truck was fully loaded.
There was no written lease agreement between Koz
dranski and Gross but nonetheless we conclude that the
Gross dump truck had been leased or borrowed from
Gross within the meaning of the provision of the Public
Service policy. Kozdranski agreed to pay by the hour
for the services of the truck and its driver. The truck
was to be used only as directed by Chapman, a Kozdranski
employee, since the truck’s sole function was to work
with the backhoe in removing the sludge. Absent any
evidence that Gross was an independent contractor of
some sort, it is apparent that the dump truck had been
“ rented or loaned” to Kozdranski, within the meaning of
exclusion (b) (1) of the Jamestown comprehensive gen
eral insurance policy.
Since the truck was an automobile within the provisions
of the Jamestown automobile policy, and since said policy
affords coverage to Kozdranski for any liability “ arising
out of the * * * -use, including loading and unloading,
of any automobile” , the Jamestown automobile policy
affords coverage to the plaintiffs in the instant action.
Similarly, since Kozdranski was “ a lessee or borrower”
of the Gross vehicle, the Public Service automobile policy
also covers the plaintiffs wdth respect to liabilty arising
out of the loading or unloading of the Gross truck.
The judgment should be reversed and a new judgment
entered declaring that the plaintiffs are not entitled to
coverage under Jamestown’s comprehensive general policy,
but that the automobile liability policies of both James
town and Public Service do afford coverage to plaintiffs
as a result of the accident in question.
Marsh, Moule and Henry, JJ., concur.
Opinion of the Appellate Division, Fourth Department
90
Opinion of the Appellate Division, Fourth
Department.
‘SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth Department.
W alter S. K ozdranski Co., Inc. and D avid E. Chapman,
Respondents-Appellants,
vs.
J amestown Mutual I nsurance Company,
Appellant-Respondent,
and
Carolyn S. J ensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased; Gross P lumbing & H eat
ing Co., Inc.; and P ublic Service Mutual I nsurance
Co.,
Respondents.
#657/1972.
Argned: October 18, 1972
Decided: November 30, 1972
Present:
Hon. Harry D. Goldman,
Presiding Justice.
Hon. John S. Marsh,
Hon. Reid S. Monle,
Hon. Frederic T. Henry,
Associate Justices.
91
Appeal by the defendant, Jamestown Mutual Insurance
Company, from a judgment of Niagara Trial Term,
Kronenberg, J., adjudging that it is obligated to provide
coverage to the plaintiff.
Cross appeal by plaintiffs from the same judgment
which relieves the Public Service Mutual Insurance Co.
of any obligation to provide coverage.
Judgment entered May 22, 1972.
Appearances:
Miles, Cochrane, Crosse, Rossetti & Harper, 1560
Statler Hilton Hotel, Buffalo, New York 14202, Attorneys
for Defendant-Appellant, Jamestown Mutual Insurance
Co. (Raymond T. Miles, Esq., of Counsel).
Rice, Rice, Hustleby & Chace, 44 Falls Street, Niagara
Falls, NewT York, Attorneys for Respondents-Appellants,
Walter S. Kosdranski Co., Inc. and David E. Chapman
(Brownstein, Canale, Madden, Burke & Siegel, 530 Wal-
bridge Building, Buffalo, New York 14202, John F.
Canale, Esq., of Counsel).
Grossman & Levine, 8612 Buffalo Avenue, Niagara
Palls, New York 14304, Attorneys for Defendant-Respond
ent, Carolyn S. Jensen (Stanley Grossman, Esq., of
Counsel).
Dixon, DeMarie & Szymoniak, 610 Walbridge Building,
Buffalo, New York 14202, Attorneys for Defendants-Re-
spondents, Gross Plumbing & Heating Co., Inc. and
Public Service Mutual Ins. Co. (Anthony J. DeMarie,
Esq., of Counsel).
Opinion.
Opinion of the Appellate Division, Fourth Department
Goldman, P. J . ;
The defendant Jamestown Mutual Insurance Company
(Jamestown) originally appealed from the entire judg
ment which declared that plaintiff Walter S. Kosdranski
92
Co., Inc. (Kozdranski) was entitled to coverage under
Jamestown’s comprehensive general liability policy bnt
was not covered under the automobile policies of either
Jamestown or Public Service Mutual Insurance Company
(Public Service). Upon the oral argument before this
Court, counsel for plaintiffs and Jamestown stated that
the Jensen action against plaintiffs had been settled
subsequent to the perfection of this appeal. It was agreed |
that the only issue which remains for determination by \
us is whether the automobile liability policy of Public t
Servic^also*"*iffords coverage to the plaintiffs for any I
liability on their part arising out of the accident in
question.
Prior to June 15, 1971, Kozdranski contracted with the
Stauffer Chemical Company (Stauffer) to supply a back-
hoe and truck to clean out a sludge pit on Stauffer’s
premises. On June 15, 1971 a backhoe owned by Koz
dranski was moved to Stauffer’s sludge pit, but Koz
dranski had no dump truck available on that day. There
fore, arrangements were made by Kozdranski with the
Gross Plumbing & Heating Co., Inc. (Gross) to supply
a truck to be used at the Stauffer site to assist Koz-
dranski’s backhoe operator, David E. Chapman, in re
moving the sludge waste. While the bucket of the back
hoe was being operated in the pit removing sludge, it
struck a pipeline which had been constructed and was
maintained by Stauffer. The breaking or dislodging of
the pipe caused gaseous hydrogen chloride and silicon
tetrachloride to escape and they were breathed by one
Walter M. Jensen, who died from the inhalation. Jensen
was a Stauffer employee and was uninvolved with the pit
cleaning operation.
Carolyn S. Jensen commenced an action against the
plaintiffs-respondents Jamestown and Chapman alleging
that the negligent and careless operation of the backhoe
caused the gases to escape and contaminate the air,
Opinion of the Appellate Division, Fourth Department
93
causing the death of her intestate, Walter M. Jensen.
The plaintiffs brought this declaratory judgment action
to determine their rights and obligations pursuant to
the insurance policies issued by Jamestown and Public
Service to Kozdranski and Gross respectively.
The Public Service automobile policy, which afforded
coverage to the Gross dump truck, listed as a person in
sured “ (c) any other person while using an owned auto
mobile or a hired automobile with the permission of
the named insured, provided his actual operation or (if
he is not operating) his other actual use thereof is within
the scope of such permission, but with respect to bodily
injury or property damage arising out of the loading or
unloading thereof, such other person shall be an insured
only if he is: (1) a lessee or borrower of the automobile,
or (2) an employee of the named insured or of such
lessee or borrower;” .
The Trial Court found that the Gross vehicle “was
operated by its own employee and Avas not in the posses
sion or control of the Kozdranski Company or its em
ployees and that it was neither loaned or borrowed by
the Kozdranski Company and therefore there is no re
sponsibility on Public Service Mutual Insurance Company
for coverage in this matter” .
The liability of Public Service turns upon the issue of
whether there was a loading and unloading situation at
the time of the alleged negligence which caused Jensen’s
death. Jamestown contends that there was loading and
unloading, that Public Service’s automobile policy affords
coverage to the plaintiffs, and that Trial Court erred in
its declaration that Jamestown’s comprehesnive policy
provided the sole coverage for the accident. On the other
hand, Public Service takes the position that the liability
falls upon Jamestown under its comprehensive policy and
that for various reasons, which we will discuss, Public
Service’s automobile policy did not cover plaintiffs Koz-
Opinion of the Appellate Division, Fourth Department
94
dranski and Chapman, The Trial Court further found
that since the Gross dump truck was operated by its own
employee and was not in the possession or under the
control of Kozdranski or its employees and since it was
neither loaned or borrowed by Kozdranski, there was no
responsibility on Public Service for coverage.
The leading and controlling decision in this State on
the question of “ loading and unloading” is Wagman v.
American Fidelity & Cos. Co. (304 N. Y. 490, 494). In
that case the Court of Appeals adopted the broad con
struction given the term in the majority of jurisdictions
which have passed upon this question. The principle laid
down in Wagman “ that ‘loading and unloading’ embrace,
not only the immediate transference of the goods to or
from the vehicle, but the ‘complete operation’ of trans
porting the goods between the vehicle and the place from
or to which they are being delivered” clearly applies to
the operation in the instant case. Kozdranski’s operator
of the backhoe removed the sludge from the pit, swung
the bucket over to the Gross dump truck, which was sta
tioned where Kozdranski’s employee directed it to be, and
dropped the sludge from the bucket into the truck. The
loading was certainly not completed while the sludge
was still being deposited in the truck. The noxious gases
first appeared when the bucket of the backhoe was picking
up sludge in the pit. The Gross truck was required to
remain at the place it was situated until it was com
pletely loaded. Under the circumstances the alleged
negligence occurred during the loading and unloading of
the Gross truck. The application of the “ loading and un
loading” concept until the transaction was completed,
enunciated in Wagman, was reaffirmed in Travelers Ins.
Co. v. Saunders & Sons (18 A. D. 2d 126, affd. 13 N. Y.
2d 1019) and Lamberti v. Anaco Equip. Corp. (16 A. D.
2d 121).
Opinion of the Appellate Division, Fourth Department
95
The Trial Court found that the truck being loaded was
operated by a Gross employee and was not in the posses
sion or control of Kozdranski or its employees. The
Court concluded that the truck was neither loaned to or
borrowed by Kozdranski. However, the facts do not sup
port that conclusion.
On the day in question the vice-president and office
manager of Kozdranski made arrangements with Gross
for a dump truck to be present at the Stauffer site to
assist Chapman in removing sludge from Stauffer’s pit.
Gross was to bill Kozdranski at the end of the month
for the number of hours the truck and its driver were at
the Stauffer site. Stauffer had no contact of any kind
with Gross, its arrangement or contract was only with
Kozdranski and Stauffer apparently paid Kozdranski to
remove the sludge in any way and using any equipment
it thought necessary.
Plaintiff Chapman, the backhoe operator, testified that
the only contact he had with the dump truck driver was
in directing him so that the sludge could be loaded most
effectively into the vehicle. The truck was required to
remain at the place of loading until the loading had been
completed and the truck was not full when the accident
occurred. In Travelers Ins. Co. v. Saunders & Sons,
supra (13 N. Y. 2d 1019), the converse was true, the
truck was obliged to remain at the place of unloading
concrete until it was completely empty. Both Chapman
and the Kozdranski vice-president testified that to their
knowledge the Gross truck driver had not been told
where to take the sludge once the truck was fully loaded.
There was no written lease agreement between Koz
dranski and Gross but nonetheless we conclude that the
Gross dump truck had been leased or borrowed from
Gross within the meaning of the provision of the Public
Service policy. Kozdranski agreed to pay by the hour for
the services of the truck and its driver. The truck was
Opinion of the Appellate Division, Fourth Department
96
to be used only as directed by Chapman, a Kozdranski
employee, since the truck’s sole function was to work
with the backhoe in removing the sludge. Absent any
evidence that Gross was an independent contractor, it is
apparent that the dump truck had been leased to or
borrowed by Kozdranski, within the meaning of Coverage
C, section II (c) (1) of the Public Service automobile
policy.
Therefore, since Kozdranski was a “ lessee or borrower”
of the Gross vehicle, and since the accident arose out
of the “ loading or unloading” of that vehicle, the Public
Service automobile policy covers the plaintiffs 'with re
spect to liability arising out of the accident.
The judgment appealed from should be reversed, and a
new judgment entered declaring that the automobile
policy of Public Service affords coverage to plaintiffs for
the accident in question.
Marsh, Moule, and Henry, JJ., concur.
Opinion of the Appellate Division, Fourth Department
/
/ Order to Show Cause to Amend Opinion.
At a Term of the Appellate Division Fourth
Department, held in the County of Monroe
in the City of Rochester, New York, on the
4th day of December, 1972.
Present:
Hon. Harry D. Goldman, Presiding Justice.
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth Department.
97
W alter S. K ozdranski Co., Inc. and David E. Chapman,
Respondents-Appellants,
vs.
J amestown Mutual I nsurance Company,
App ellant-Resp ondent,
and
Carolyn S. J ensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased; Gross P lumbing & Heat
ing Co., Inc. and P ublic Service Mutual I nsurance Co.,
Respondents.
#657/1972
On reading the affidavit of John F. Canale, duly verified
the 4th day of December, 1972 and on the records and
briefs heretofore filed, and on the oral argument had
herein, let the above named parties or their attorneys
show cause at a Term of this Court, to be held at the
98
Order to Show Cause to Amend Opinion
Hall of Justice in the City of Rochester, New York, on
the 7th day of December, 1972 at 10:00 o’clock in the
forenoon of that day or as soon thereafter as counsel
can be heard, why an order should not be made amending
the opinion herein in accordance with the statements made
to the Court at the time of the oral argument of this
appeal and directing that that opinion be confined to a
determination of the issue only with reference to the
coverage of Public Service Mutual Insurance Company
and for such other and further relief as to the Court
may seem just and proper.
Sufficient reason appearing therefor, that service of a
copy of this order together with the annexed affidavit,
on the plaintiffs or their attorneys, by mail on December
4, 1972 or by personal service by noon on December 5,
1972, be deemed good and sufficient service.
s / HARRY D. GOLDMAN by Consent
Presiding Justice—Appellate Division
Fourth Department
99
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth Department.
[S ame T itle.]
State of New York,
County of Erie, ss:
J ohn F. Canale, being duly sworn, deposes and says:
That he is of counsel to Rice, Rice, Hustleby & Chaee
attorneys for the respondents-appellants, Walter S. Koz-
dranski Co., Inc. and David E. Chapman, in the above
captioned matter.
That he is personally familiar with the issues in this
matter having handled the trial of the declaratory judg
ment action that resulted in the judgment appealed from,
having prepared the brief in behalf of his clients and
having attended the oral argument and argued the appeal
in behalf of his clients before this court on October 18,
1972.
That deponent is now in receipt of an opinion of this
court received by deponent on December 4, 1972. That
the opinion discusses the issue as to whether or not the
plaintiffs are covered by the comprehensive general lia
bility policy of the defendant, Jamestown Mutual Insur
ance Company or by the automobile liability policies of
defendant Jamestown Mutual Insurance Company and
defendant Public Service Mutual Insurance Company.
That in fact and prior to the argument of the appeal the
issue of whether or not the plaintiffs are covered by
the comprehensive general liability policy of the de
fendant Jamestown Mutual Insurance Company was with
drawn from consideration by this Court on the argument
by Mr. Raymond T. Miles, Esq., attorney for defendant-
Affidavit o f John F. Canale in Support of Motion to
Amend Opinion.
100
appellant, Jamestown Mutual Insurance Company. That
at the time of the oral argument of this appeal the court
was advised that a pending lawsuit involving defendant-
respondent Carolyn S. Jensen as plaintiff had been settled
for an amount in excess of coverage available under
the automobile liability policy of defendant Jamestown
Mutual Insurance Company and that issue as to James-
town Mutual Insurance Company was being withdrawn.
The Court was advised that the only point that remained
in dispute and which it was to decide, was the issue of
whether or not the automobile liability policy of Public
Service Mutual Insurance Company afforded coverage
to these plaintiffs under these circumstances. At the
time of the argument Mr. Miles in behalf of Jamestown
Mutual Insurance Company specifically amended and with
drew from consideration the portions of the record and
the brief relating to any further argument as to which
policy of Jamestown Mutual Insurance Company applied.
Under these circumstances the decision of the court as
rendered goes far beyond the issue presented to it and
the matter which was submitted to the court for deter
mination.
Deponent therefore prays for a show cause order
returnable Thursday morning December 7, 1972 before
this court directing that cause should be shown why the
opinion as rendered by the court should not be amended
to delete any discussion or determination with reference
to Jamestown Mutual Insurance Company policies and
confining the opinion to a determination of whether or
not the policy of Public Service Mutual Insurance Com
pany affords coverage to these plaintiffs.
That deponent has discussed this matter with the Hon.
Harry D. Goldman and has been advised that if he
desires such a show cause order same should be made
returnable this week the latest day being Thursday, since
Affidavit of John F. Canale in Support of Motion to
Amend Opinion
101
that apparently is the last day in which the court will
be in session. That under these circumstances deponent
asks that the show cause order provide for service by
mail by 5:00 p.m. on December 4, 1972 or by personal
service by noon on December '5, 1972.
(Sworn to by John F. Canale, December 4, 1972.)
Affidavit of John F. Canale in Support of Motion to
Amend Opinion
\ 102
STATE OF NEW YORK, SUPREME COURT,
A ppellate D ivision—F ourth Department.
Notice of Motion by Defendant Jamestown Mutual
Insurance Company to Amend Opinion.
W alter S. K ozdranski Co., Inc. and D avid E. Chapman,
Respondents-Appellants,
vs.
Jamestown Mutual I nsurance Company,
Appellant-Respondent,
and
Carolyn S. Jensen, as Administratrix of the Estate of
Walter M. Jensen, Deceased; Gross P lumbing & H eat
ing Co., Inc. and P ublic Service Mutual I nsurance
Co.,
Respondents.
Sirs:
Please Take Notice, that upon the annexed affidavit of
Raymond T. Miles duly verified the 10th day of January,
1973, and on the records and briefs heretofore filed, and
on the previous oral argument, and on the opinions of
this Court and the orders of this Court, a motion will
be made at the Court Room of the Appellate Division
of the Supreme Court, Fourth Judicial Department, in
the Hall of Justice in the City of Rochester, New York,
on the 13th day of February, 1973, at 10:00 o ’clock in
the forenoon of that day, or as soon thereafter as counsel
can be heard, for an order to amend the opinion of
this Court handed down with its order of November 30,
1972, and entered in this Court on December 12, 1972,
103
so that the language of that opinion would clearly indi
cate that the only issue decided by this Court, as re
flected in its said order entered December 12, 1972, was
the issue whether the automobile liability policy of the
Public Service Mutual Insurance Co. afforded coverage to
the plaintiffs for any liability on their part arising out of
the accident giving rise to this litigation, but without
indicating by inference or otherwise that there was any
withdrawal of the appeal from the judgment of the trial
court so that the Jamestown Mutual Insurance Company
would be prevented from contesting in any litigation
effecting any claimants other than the Estate of Walter
M. Jensen its obligation to defend and indemnify Walter
S. Kozdranski Co., Inc. and David E. Chapman and from
asserting that its obligation to defend Walter S. Koz
dranski Co., Inc. and David E. Chapman against such
other claimants and to indemnify Walter S. Kozdranski
Co., Inc. and David E. Chapman was limited to the
coverage of its automobile policy issued to Walter S.
Kozdranski Co., Inc. and in effect on June 15, 1971.
Dated: Buffalo, New York
January 10, 1973
Yours, etc.,
Miles, Cochea:ne, Grosse & R ossetti
Attorneys for Appellant-Respondent James
town Mutual Insurance Company
Notice of Motion by Defendant Jamestown Mutual
Insurance Company to Amend Opinion
104
Notice of Motion by Defendant Jamestown Mutual
Insurance Company to Amend Opinion
T o :
Rice, Rice, Hustleby & Chace
Brownstein, Canale, Madden, Burke &
Siegel, Of Counsel
Attorneys for Respondents-Appellants
Dixon, DeMarie & Szymoniak
Attorneys for Respondents, Gross Plumbing
& Heating Co., Inc. and Public Service
Mutual Insurance Co.
Grossman & Levine
Attorneys for Respondent, Carolyn S. Jensen,
as Administratrix of the Estate of
Walter M. Jensen, Deceased
Clerk of Appellate Division
Supreme Court, Fourth Judicial Department
105
o f Raymond T. Miles in Support o f Motion
o f Jamestown Mutual Insurance Company to Amend
Opinion.
STATE OF NEW YORK, SUPREME COURT,
A ppellate D ivision— F oubth Department.
[Same T itle.]
State of New York,
County of Erie, ss :
City of Buffalo,
R aymond T. M iles, being duly sworn, deposes and
says:
1. That he is a member of the firm of Miles, Cochrane,
Grosse & Rossetti, successors to Miles, Cochrane, Grosse,
Rossetti & Harper, counsel for the defendant, Jamestown
Mutual Insurance Company.
2. That he is personally familiar with the issues in
this matter, having handled the trial of the declaratory
judgment action in the Supreme Court, Niagara County,
and an appeal from said judgment which was argued in
the Appellate Division of the Supreme Court, Fourth
Judicial Department, and the argument which came on
before the Appellate Division of the Supreme Court,
Fourth Judicial Department as a result of the order
to show cause of that Court relative to the amendment
of the Court’s opinion and order of November 30, 1972.
3. That deponent has read the affidavit of John F.
Canale in support of the aforesaid order to show cause,
which affidavit was sworn to December 4, 1972, and has
also read the opinion of the Court following the argu
ment on the order to show cause and deponent has also
read the order of the Court dated November 30, 1972,
106
and entered December 12, 1972, amending the previous
order of this Court.
4. That prior to the argument of the appeal from the
judgment of the Niagara Trial Term, the Jamestown Mu
tual Insurance Company entered into an agreement of
settlement with counsel for Carolyn S. Jensen, as Ad
ministratrix of the Estate of Walter M. Jensen, Deceased,
to dispose of a verdict which had been obtained by said
Administratrix against Walter S. Kozdranski Co., Inc.
in the amount of $800,000.00.
5. That the amount agreed to be paid by Jamestown
Mutual Insurance Company in satisfaction of said judg
ment was an amount in excess of the limitation of cover
age of the policy previously referred to herein as the
Jamestown Mutual Insurance Company automobile lia
bility policy.
6. That the amount agreed to be paid by the James
town Mutual Insurance Company in satisfaction of said
judgment was not in excess of the comprehensive general
liability policy issued to Walter S. Kozdranski Co., Inc.,
previously referred to in the briefs and records on tile
herein.
7. That said agreement of settlement was not partici
pated in by deponent, and he was advised of said agree
ment by the Jamestown Mutual Insurance Company on
October 16, 1972.
8. That at the time of the argument of the appeal from
the declaratory judgment on October 18, 1972, deponent
advised this Court that a settlement had been effected in
the lawsuit of Carolyn S. Jensen, as Administratrix of
the Estate of Walter M. Jensen, Deceased; against Walter
S. Kozdranski Co., Inc. in the Supreme Court of the
Affidavit of Raymond T. Miles in Support of Motion
of Jamestown Mutual Insurance Company to Amend
Opinion
107
State of New York, Niagara County, and that by the
terms of the settlement agreement there was to be a
satisfaction of the judgment obtained by said Carolyn
S. Jensen for an amount in excess of the limitation of
coverage in the policy issued by Jamestown Mutual In
surance Company, referred to as the automobile lia
bility insurance policy, and only slightly less than the
amount which was the limitation of coverage in the
comprehensive general liability policy issued by James
town Mutual Insurance Company to Walter S. Kozdranski
Co., Inc.
9. That this fact was made known to the Court so
that there would be complete candor displayed to the
Court, and it was pointed out to the Court that the Court’s
decision on the coverage questions presented to it by
the record on appeal and the briefs, all of which had been
printed before the agreement of settlement referred to
herein, would have no effect upon that agreement of
settlement.
10. That it Avas also stated, and putting it someAvhat
differently as expressed in the preceding paragraph,
that the matter of coverage as between the automobile
liability policy and the comprehensive general liability
policy, both issued by Jamestown Mutual Insurance Com
pany, was a moot question insofar as it would affect
the lawsuit of Carolyn S. Jensen, as Administratrix of
the Estate of Walter M. Jensen, Deceased.
11. That it was further made clear to this Court that
there was still a coverage question relative to the policy
of insurance issued by the Public Service Mutual In
surance Co. covering Gross Plumbing & Heating Co., Inc.
Affidavit of Raymond T. Miles in Support, of Motion
of Jamestown Mutual Insurance Company to Amend
Opinion
108
12. That it was further made clear to the Court through
very extensive oral argument on the point that the
coverage question relative to whether the Jamestown Mu
tual Insurance Company was obligated to defend and
indemnify "Walter S. Kozdranski Co., Inc. and David
E. Chapman against claims arising on June 15, 1971,
was important since it was brought to the Court’s atten
tion and was the subject of extensive conversation be
tween counsel and the Court that another lawsuit was
about to be started or might well have been started by
another claimant in a position similar in many ways to
the position of the Jensen Estate.
13. That thereafter the Court rendered its opinion
of November 30,. 1972, which was accompanied by its
order of November 30, 1972, reversing the judgment of
the trial term and determining that the automobile policy
of Public Service Mutual Insurance Co. afforded coverage
to the plaintiffs as a result of the accident in question.
14. That thereafter there was further argument before
the Court relative to its opinion of November 30, 1972,
that argument being the result of an order to show cause
granted on December 4, 1972.
15. That the order to show cause was returnable on
December 7, 1972, and again it was brought forth to
the Court that although the coverage question raised by
the issuance of the two policies by Jamestown Mutual
Insurance Company, that is, the automobile liability
policy and the comprehensive general liability policy,
was moot insofar as it might affect the lawsuit of Carolyn
S. Jensen, as Administratrix of the Estate of Walter
M. Jensen, Deceased, against Walter S. Kozdranski Co.,
Inc., but was not moot insofar as any other claimant
against Walter S. Kozdranski Co., Inc. and David E.
Affidavit of Raymond T. Miles in Support of Motion
of Jamestown Mutual Insurance Company to Amend
Opinion
109
Chapman who would be in posture similar to the de
ceased, Walter M. Jensen.
16. That again the Court indicated its understanding
and finally rendered a decision which accompanied its
order amending its previous opinion, nunc pro tunc, as
of November 30, 1972, said order being entered December
12, 1972.
17. That in the opinion which accompanied the latest
order of the Court, it was stated as follows:
“ It was agreed that the only issue which remains
for determination by us is whether the automobile
liability policy of Public Service also affords
coverage to the plaintiffs for any liability on their
part arising out of the accident in question.”
18. That it is respectfully submitted that it was not
so agreed, but rather that it was pointed out to the
Court as deponent has indicated above, that is, that no
decision of coverage between the Jamestown Mutual
Insurance Company automobile policy and comprehensive
general liability policy was required by the Jensen case,
but that such a decision would be pertinent to claims
made by any other persons situated similar to the de
ceased, Jensen.
19. That the Court has, however, not made it clear
in its opinion nor in its order following its opinion, that
there was no formal withdrawal of appeal on all issues
and that, in fact, the right to contest coverage as be
tween the two policies issued by the Jamestown Mutual
Insurance Company insofar as they would affect Walter
S. Kozdranski Co., Inc., David E. Chapman and any
claimant situated similar to the deceased, Jensen, was
being reserved, and that it was made abundantly clear
Affidavit of Raymond T. Miles in Support of Motion
of Jamestown Mutual Insurance Company to Amend
Opinion
110
by conversations between counsel and the Court that this
was understood by all counsel and the Court.
W herefore, deponent prays that this Court amend its
opinion, handed down with its order of November 30,
1972, which was entered on December 12, 1972, to indicate
clearly that there was no formal withdrawal of the ap
peal from the trial court judgment or any part thereof
and that the effect of this Court’s previous decision and
order was not to limit the Jamestown Mutual Insurance
Company from contesting in any litigation that it was
not obligated to defend Walter S. Kozdranski Co., Inc.
and David E. Chapman against any claimants situated
similarly to the Estate of Walter M. Jensen and to in
demnify Walter S. Kozdranski Co., Inc. and David E.
Chapman in favor of such claimant by reason of its
comprehensive general liability policy and from assert
ing rather that it was not obligated to defend and indem
nify Walter S. Kozdranski Co., Inc. and David E. Chap
man against such claimants by reason of its compre
hensive general liability policy issued to Walter S.
Kozdranski Co., Inc. and effective on June 15, 1971.
Affidavit of Raymond T. Miles in Support of Motion
of Jamestown Mutual Insurance Company to Amend
Opinion
(Sworn to by Raymond T. Miles, January 10, 1973.)
/
Affidavit o f John F. Canale in Opposition to Motion o f
Defendant Jamestown to Amend Opinion.
SUPREME COURT, STATE OF NEW YORK,
A ppellate D ivision— F ourth Department.
111
[Same T itle.]
State of New York,
County of Erie, ss:
J ohn F. Canale, being duly sworn, deposes and says:
1. That he is of counsel to Rice, Rice, Hustleby &
Chace, attorneys for the respondents-appellants, Walter
S. Kozdranski Co., Inc. and David E. Chapman, in the
above captioned matter and is personally familiar with
the events of this matter and the issues therein.
2. That reference is made to deponent’s affidavit of
December 4, 1972 upon which the show cause order re
turnable December 7, 1972 was granted.
3. That the Court is fully familiar with developments
in this matter as set forth in deponent’s affidavit and the
oral argument on the return date of the show cause
order i. e. December 7, 1972.
4. That on said argument on December 7, 1972, the
Court advised all counsel that the Clerk’s minutes relat
ing to the argument on October 18, 1972 showed that in
fact any issue relating to the determination of the cov
erage of Jamestown Mutual was withdrawn from the ap
peal and from the consideration of the Court in view of
the settlement Jamestown Mutual had made.
5. That in light of those notations of the Clerk and
statements by counsel, and pursuant to the show cause
order obtained by deponent and as requested therein, a
further opinion was rendered by the Court.
112
Affidavit of John F. Canale in Opposition to Motion of
Defendant Jamestown Mutual to Amend Opinion
6. That the Court in its last opinion in this ease clearly
rendered a decision in the only issue presented to it
for determination, namely the issue of whether coverage
under Public Service Mutual’s policy was available to
plaintiffs.
7. Whether or not counsel for Jamestown Mutual has
other avenues open to him to litigate any question of cov
erage he wants to litigate and still deems open is not a
matter properly before this Court and has no place in
the issue determined by the Court in this appeal, being
the only issue presented to it.
W herefore, deponent respectfully submits that the opin
ion of this Court handed down with its order of Novem
ber 30, 1972 which was entered on December 12, 1972,
should not be disturbed.
(Sworn to by John F. Canale, January 23, 1973.)
113
Certification Pursuant to Rule 2105.
I, R aymond T. Miles, a member of the firm of Miles,
Cochrane, Crosse, Rossetti & Harper the attorneys for
the defendant-appellant-respondent Jamestown Mutual
Insurance Company in this action do hereby certify pur
suant to Rule 2105, that the foregoing printed record on
appeal to the Appellate Division, Fourth Department, the
notice of appeal to the Court of Appeals by defendant
Jamestown Mutual Insurance Company from an order en
tered December 12, 1970 amending a previous order en
tered November 30, 1972, the notice of appeal to the
Court of Appeals by defendant Public Service Mutual
Insurance Company from an order entered December 12,
1972 amending a previous order entered November 30,
1972, the notice of appeal to the Court of Appeals by de
fendant Public Service Mutual Insurance Company from
an order of reversal entered November 30, 1972, the no
tice of appeal to the Court of Appeals by defendant Gross
Plumbing & Heating Co., Inc., from an order of reversal
entered November 30, 1972, the notice of appeal to the
Court of Appeals by defendant Jamestown Mutual In
surance Company from an order of the Appellate Di
vision denying a motion to amend opinion, the order of
reversal appealed from, entered November 30, 1972, the
order appealed from amending opinion, the order of the
Appellate Division denying motion of defendant James
town Mutual Insurance Company to amend opinion, the
opinions of the Appellate Division, Fourth Department,
the order to show cause to amend opinion, the affidavit of
John F. Canale in support of motion to amend opin
ion, the notice of motion by defendant Jamestown Mutual
Insurance Company to amend opinion, the affidavit of
Raymond T. Miles in support of motion of Jamestown
Mutual Insurance Company to amend opinion, and the
/
114
Certification Pursuant to R ule 2105
affidavit of John F. Canale in opposition to motion of de
fendant Jamestown to amend opinion, has been person
ally compared by me with the originals on file in the
office of the Clerk of the County of Niagara and found to
be trne and complete copies of said originals and the
whole thereof now on file in the office of the Clerk of
the Connty of Niagara.
Dated: July , 1973.
RAYMOND T. MILES.