
    Lumbermen’s Mutual Casualty Company, Appellant, v. George J. Brown, as Administrator of the Estate of Mabel G. Brown, Deceased, et al., Respondents.
    Argued September 21, 1967;
    decided November 29, 1967.
    
      
      Bernard Sicherman and Howard A. Davidson for appellant,
    I. The sole issue is coverage under the policy. II. There is; no substantial dispute as to the facts. III. Nor is there any dispute as to the covering policy. IV. Defendants-respondents-Elton Sheffield and Shirley A. Sheffield were not persons insured with the meaning of the paragraph entitled persons insured. (Collins v. Northwest Cas. Co., 180 Wash. 347; Bornas v. Standard Acc. Ins. Co., 5 A D 2d 96; Matter of Hayden, 204 N. Y. 330; New Century Cas. Co. v. Chase, 39 F. Supp. 768; Byrne v. Continental Cas. Co., 301 Ill. App. 447; Frankel v. Allied Mut. Liab. Ins. Co., 288 Mass. 218; Antone v. New Amsterdam Cas. Co., 335 Pa. 134.) V. The “proper temporary custody” clause has a very limited application and is functus upon the accession of a legal representative, VI, Failure of Ella Sheffield, as exeeutrix, to exorcise her fiduciary powers over the Rambler automobile could not, after her death, effect a revision of the policy. VII. No proof exists for invocation of any asserted estoppel. (Quinlan v. Providence Washington Ins. Co., 133 N. Y. 356; Birmingham Fire Ins. Co. v. Sharrow, 249 F. Supp 429.) VIII. The order appealed from accidentally but explicitly enlarges plaintiff-appellant’s limits of liability under the policy.
    
      Irma R. Thorn and William J. Fredel for Shirley A. Sheffield and others, respondents.
    I. Defendants-respondents have the protection of appellant’s policy and were entitled to the benefits provided therein at the time of an accident which occurred on November 5, 1965. Elton Sheffield and any member of his family using the car with his permission had 11 proper temporary custody” of the car at the time of the accident. II. Elton Sheffield became the “ insured ” under the policy after the death of his mother, Ella Sheffield. (Teeter v. Allstate Ins. Co., 9 A D 2d 176, 9 N Y 2d 655.) III. The permissive use of an automobile is not limited to the lifetime of the named insured. IV. Failure of Ella Sheffield, as executrix of the named insured, Eva Champlin, to transfer title to the insured automobile did not terminate the coverage under the policy at her death. (Doyle v. Allstate Ins. Co., 1 N Y 2d 439; Baldinger v. Consolidated Mut. Ins. Co., 15 A D 2d 526, 11 N Y 2d 1026; Morgan v. Greater N. Y. Taxpayers Mut. Ins. Assn., 305. N. Y. 243.) V. The order appealed from does not enlarge appellant’s liability under the policy.
   Memorandum. The plaintiff insurance company issued a policy of liability coverage on November 21, 1964 for one year on a 1960 Rambler automobile which, Avithin the period of coverage, on November 5, 1965 was involved in an accident while being operated by a person laAvfully using it. The insurance company seeks in this action a declaration that it is not responsible for coverage although the premium paid extended beyond the time of accident.

The insured named in the policy was Eva Champlin, who died July 17, 1965. Her sister Ella Sheffield Avas named her executrix and residuary beneficiary and title to the automobile accordingly passed to her. Shortly after Eva Champlin’s death, the insurance agent who had negotiated the policy in issue visited Ella Sheffield and advised her and Elton Sheffield, her son and an alternate executor of the (Jhamplin estate, that the motor vehicle plate could be turned in and part of the premium refunded or that the Sheffields could continue to use the car. The insurance company had previously been advised of the death of the named insured. On August 4, 1965 Ella Sheffield was appointed by the Surrogate executrix of Eva Champlin’s estate, and on November 1, 1965 Ella Sheffield died. The accident of November 5 occurred the day after her funeral while the car was being operated with the consent of her son by the latter’s wife.

The policy of insurance provided that in the event of the death of the insured the insurance policy ‘ ‘ shall cover ’ ’ any person “having proper temporary custody” of the vehicle “until the appointment and qualification of” a legal representative.

The Trial Term construed this policy provision to cover Elton Sheffield, the alternate executor of the named insured and the son of Ella Sheffield, to whom ownership of the car had passed.

After the beneficiary, Ella Sheffield, had died, her son, Elton Sheffield, probably succeeded to title but, in any event, he had the legal right to use the vehicle. Thus, he was a person having “ proper temporary custody ” of the vehicle even though a legal representative had previously been appointed and had died. The policy must be liberally construed in favor of coverage in these circumstances. To permit the insurer to escape liability would run against the public policy laid down by the Vehicle and Traffic Law.

The order should be affirmed, with costs.

Burke, J.

(dissenting). Eva Champlin is the named insured under the appellant’s insurance policy issued November 21, 1964 for one year. On July 17, 1965 Eva died leaving the main part of her estate, including her car, to Ella Sheffield. Ella was named executrix and her son Elton, Eva’s nephew, was named as alternate executor. Ella qualified as executrix on August 4, 1965 and died on November 1, 1965. On November 5, at a time when no successor legal representative had been appointed, her daughter-in-law, Shirley Ann Sheffield, was involved in an accident while driving this car. She has been sued for negligence in connection with this accident and claims that she is entitled to protection under the insurance policy which was issued to Eva.

Under the clear terms of the policy Shirley Ann, the operator of the car at the time of the accident, was not a person insured within the meaning of the clause of the liability policy entitled “ Persons Insured ”, It is equally apparent that the clause covering persons “having proper temporary custody” of an owned automobile does not apply to the case at bar. However broad this obligation may be, it clearly terminated on August 4, .1965, when the executrix of the named insured was appointed.

The Trial Justice’s finding as affirmed by the Appellate Division that Elton Sheffield, Ella’s son, and Shirley Ann Sheffield, his wife, were insured under ‘ the proper temporary custody clause ” is in direct conflict with the precise simple language of that clause in the policy. While the policy under this clause protected those having proper temporary custody of the automobile after Eva Champlin’s death without any requirement of notice to claimant-appellant and without a limitation of coverage for any fixed number of days after the policyholder’s death, it stated explicitly that the coverage extended only ‘ ‘ until the appointment and qualification of such legal representative.” Therefore, the obligation of the plaintiff-appellant terminated when Ella qualified as executrix. At this point the temporary custody coverage clause expired.

The failure of Ella Sheffield to secure coverage in respect to the operation of the car by her daughter-in-law Shirley Ann Sheffield by a proper assignment released the company from any liability for accidents occurring thereafter while the automobile was operated by her daughter-in-law. Whatever permission Shirley Ann had prior to Eva Champlin’s death to operate the car terminated upon the appointment of the executrix when the car became the property of the estate or Ella. No matter how tragic the circumstance, courts are not at liberty to revise and rewrite a policy of insurance so as to extend coverage to persons uninsured by and unknown to the company and contrary to the unambiguous provisions of the policy. In this State, insurance companies have heretofore been permitted by law to select by contract their risks. The Legislature has never authorized this court to require them to do otherwise.

Finally, there is no proof in' this record to support an asserted estoppel. The Trial Justice’s finding, that Elton Sheffield, Shirley’s husband, had been assured by the company agent after his mother’s death and prior to the accident that the coverage was in force, is based upon a misunderstanding of the record. There were only two conversations between Elton Sheffield and the agent. The first took place a few days after Eva Champlin’s death in July, before the appointment of her executrix, and the second occurred after the accident on November 5. Furthermore the policy contains in broad language the usual nonwaiver, nonestoppel, nonauthorization proscriptions found in such insurance policies. This clause has long been enforced. (Quinlan v. Providence Washington Ins. Co., 133 N. Y. 356.)

The order of the Appellate Division should be reversed and a declaratory judgment in favor of appellant entered.

Chief Judge Fuld and Judges Bregan, Keating and Breitel concur in memorandum; Judge Burke dissents and votes to reverse in an opinion in which Judges Van Voorhis and Scileppi concur.

Order affirmed.  