Home Indemnity Co. v. State Farm Mutual Automobile Insurance

Herlihy, J. (dissenting).

While questions of indemnity and the duty to defend often involve issues of "notice” and prompt disclaimer as per the policy provisions, there are also cases which involve the fundamental question of when the policy extends coverage. The present case falls into this latter group.

The policy herein extends coverage as to the operation of nonowned vehicles but only as an excess carrier. In the case of Matter of Allcity Ins. Co. v Sioukas (51 AD2d 525, affd on opn below 41 NY2d 872) it was noted that a notice of disclaimer was not necessary unless it was first established…