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The New York Court of Appeals on "Maintenance"

IGavel2 n Guishard v General Sec. Ins. Co., 2007 NY Slip Op 06581, the NY Court of Appeals issued a decision in a declaratory judgment action wherein the Petitioner sought an Order declaring that the Respondent insurance company was obligated to defend and indemnify the Petitioner in the underlying personal injury aciton.  The plaintiff in the underlying action was riveting metal when he injured his eye while converting a van into a "Mr. Softee" ice cream truck.

The policy at issue excluded coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented or loaned to any insured." The insurer moved for summary judgment on the grounds that it was not obligated to defend or indemnify plaintiffs because the conversion work performed by the injured party constituted "maintenance."

The Court disagreed and concluded that:

The work performed by the injured plaintiff did not constitute "maintenance" of an auto. "Maintenance," as that term is used in an insurance policy, means performance of work on "an intrinsic part of the mechanism of the car and its overall function" (Farmers Fire Ins. Co. v Kingsbury, 105 AD2d 519, 520 [3d Dept 1984] [removing tire from rim constitutes maintenance] [citation omitted], lv denied 64 NY2d 607 [1985]; see Pennsylvania Millers Mut. Ins. Co. v Manco, 63 NY2d 940, 942 [1984] [changing a tire constitutes maintenance]). Riveting metal to a van in furtherance of its conversion to an ice cream truck aids in transforming the auto's function, an activity distinct from "maintenance."

Seems to me a fairly obvious conclusion, which leads me to wonder whether the record on appeal reveal other thorny issues not revealed in this short decision.


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