New York Insurance Coverage Law Update 2010 Summary

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2 TABLE OF CONTENTS Page Additional and Named Insureds... 1 Town of Fort Ann v. Liberty Mut. Ins. Co., 69 A.D.3d 1261 (3d Dep t 2010) (Insurer Has Duty To Defend Town As Additional Insured After Collapse Of Town Owned Dam Reconstructed By Named Insured). Village of Brewster v. Virginia Sur. Co., Inc., 70 A.D.2d 1239 (3d Dep t 2010) (Court Orders Insurer To Reimburse Additional Insured s Legal Fees After Finding Additional Insured s Own Coverage Was Excess). Majawalla v. Utica First Ins. Co., 71 A.D.3d 958 (2d Dep t 2010) (Question of Fact As To Whether Building Owner Covered Even Though Not An Insured). Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, 15 N.Y.3d 34 (2010) (Top New York Court Finds Construction Manager Is An Additional Insured Where Named Insured s Employee Claimed Injury). Hargob Realty Assoc., Inc. v. Fireman s Fund Ins. Co., 73 A.D.3d 856 (2d Dep t 2010) (Appellate Court Rules Hold Harmless Agreement Did Not Require Insured To Name Owner As Additional Insured). Skanska USA Bldg Inc. v. Burlington Ins. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. July 15, 2010) (No Coverage For Construction Manager That Did Not Have Written Contract With Insured Providing It Would Be Named An Additional Insured). W&W Glass Sys., Inc. v. Admiral Ins. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. July 29, 2010) (Allegations Sufficient To Find Obligation To Defend Additional Insured Under Caused By Provision). Lehr Constr. Co. v. Continental Cas. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. Aug. 13, 2010) (Court Finds Additional Insured Coverage Under Policy of Claimant s Employer). Empire Bldrs. & Developers, Inc. v. Delos Ins. Co., 2010 N.Y. Slip Op (2d Dep t Nov. 9, 2010) ( Verbal Understanding Insufficient To Lead To Additional Insured Coverage). Conditions Precedent/Late Notice... 2 American Transit Ins. Co. v. Hashim, 68 A.D.3d 618 (1st Dep t 2009) (Insurer That Could Have Moved To Vacate Default Judgment And For Leave To File Late Answer Failed To Demonstrate Prejudice, First Department Rules). Tower Ins. Co. of N.Y. v. Miles, 74 A.D.3d 410 (1st Dep t 2010) (Bar Owner s Five Month Delay In Notifying Insurer Following Bar Fight Dooms Claim). Hunter Roberts Constr. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404 (1st Dep t 2010) (Four Month Delay In Disclaiming For Failure To Notify As Soon As Practicable Deemed Unreasonable). New York Univ. v. American Bldg. Maintenance, 2010 N.Y. Slip Op (1st Dep t Nov. 30, 2010) (Failure To Notify Insurer For Years Dooms Coverage For Bodily Injury Claim). Coverage Grant... 3 Richner Communications, Inc. v. Tower Ins. Co. of N.Y., 72 A.D.3d 670 (2d Dep t 2010) (No Coverage For Alleged Fall At Property Not Listed As A Designated Premises ). Downey v. 10 Realty Co., LLC, 2010 N.Y. Slip Op (1st Dep t Nov. 23, 2010) (No Coverage For Mold Case Where Alleged Injury Outside Policy Period). Exclusions... 3 Frydman v. Fidelity National Title Ins. Co., 68 A.D.3d 622 (1st Dep t 2009) (Title Insurer Need Not Defend Homeowner In Adverse Possession Case Involving Allegedly Misplaced Fence Where Policy Had Specific Exclusion For Fences). i

3 Nautilus Ins. Co. v. Matthew David Events, Ltd., 69 A.D.3d 457 (1st Dep t 2010) (Broad Employee Exclusion In Insured s Policy Dooms Coverage For Suit By Contractor s Employee). U.S. Underwriters Ins. Co. v. Landau, 679 F.Supp. 2d 330 (E.D.N.Y. 2010) (Federal Court Finds That Independent Contractor Exclusion Is Unambiguous, And That Insurer Is Not Estopped From Maintaining Allegedly Untimely Disclaimer For Property Damage Claims Where No Prejudice). Drk, LLC v. Burlington Ins. Co., 74 A.D.3d 693 (1st Dep t 2010) (No Coverage Where Injured Party Was Employee Of Another Insured). Travco Ins. Co. v. Donaghy, No /2009 (Sup. Ct. Queens Co. June 16, 2010) (No Coverage Where Insureds Son Had Urged And/Or Encouraged Alleged Assault). DMP Contr. Corp. v. Essex Ins. Co., 76 A.D.3d 84 (1st Dep t 2010) (Auto Exclusion Bars CGL Coverage Where Injured Person Slipped While Entering Car). Metalios v. Tower Ins. Co. of N.Y., 77 A.D.3d 471 (1st Dep t 2010) (Insurer Must Defend Restaurant Owner In Suit Following Fight At Party). Nahshon Aaron Council v. Utica First Ins. Co., 77 A.D.3d 1433 (4th Dep t 2010) (Assault and Battery Exclusion Dooms Coverage For Nightclub Fight). Great Am. Restoration Servs., Inc. v. Scottsdale Ins. Co., 2010 N.Y. Slip Op (2d Dep t Nov. 9, 2010) (Exclusions Do Not Bar Coverage For Unknowing Or Accidental Release Of Asbestos). Auto/Uninsured/Underinsured Motorist... 5 Progressive Cas. Ins. Co. v. Harco Natl. Ins. Co., 70 A.D.3d 1495 (4th Dep t 2010) (No Coverage From Car Dealer s Insurer For Accident Involving Loaner Car To Customer). NGM Ins. Co. v. Blakely Pumping, Inc., 593 F.3d 150, (2d Cir. 2010) (Accident That Occurred While Employee Was Driving His Own Truck While Working Is Not Covered By Employer s Policy). RLI Ins. Co. v. Smiedala, 71 A.D.3d 1553 (4 th Dep t 2010) (Employee Driving His Own Leased Car While Working Is Not An Insured Under Employer s Auto Insurance Policy). Konstantinou v. Phoenix Ins. Co., 74 A.D.3d 1850 (4 th Dep t 2010). (Coverage Barred For Auto Accident Involving Car Owned By Insured s Daughter, A College Student). Matter of Liberty Mut. Fire Ins. Co. v. Malatino, 75 A.D.3d 967 (3d Dep t 2010) (Parked Truck Was Being Used To Transport Sheet Metal That Allegedly Cut Insured). Central Radiology Servs., P.C. v. MVAIC, 28 Misc.3d 1376 (2d Dep t 2010) (Assignor s Failure To Timely File Claim With MVAIC Dooms Its Action). Allstate Ins. Co. v. Etienne, No. 09 CV 3582 (E.D.N.Y. Oct. 26, 2010) (Court Refuses To Dismiss Insurer s RICO Claims Against Medical Providers In Alleged No Fault Fraud Case). First Party Property... 6 Adamowicz v. North Country Ins. Co., 70 A.D.3d 47 (3d Dep t 2009) (Insurer s Demand For Sworn Proof Of Loss Sent To Homeowner s Attorney, Which Homeowner Allegedly Never Received, Deemed Insufficient). Lattimore Rd. Surgicenter, Inc. v. Merchants Group, Inc., 71 A.D.3d 1379 (4th Dep t 2010) (Water Exclusion Bars Coverage For Damages From Ruptured Water Main That Ruptured Sewer Lateral In Building). Fabozzi v. Lexington Ins. Co., 601 F.3d 88 (2d Cir. 2010) (Second Circuit Opines That Limitations Period Begins To Run When Insureds Claim Against Homeowner s Insurer Accrues). Jeune v. Peerless Ins. Co., 72 A.D.3d 1444 (3d Dep t 2010) (Court Finds Factual Questions As To Whether Plaintiffs Had Falsely Represented They Would Occupy House Later Damaged By Fire). Page ii

4 Cragg v. Allstate Indem. Corp., 74 A.D.3d 90 (4 th Dep t 2010) (Coverage Barred Under Homeowners Policy Where Decedent Was An Insured). Gruninger v. Nationwide Mut. Ins. Co., 74 A.D.3d 1762 (4 th Dep t 2010) (No Coverage Under Homeowner s Policy For Assault While Deer Hunting). Villa v. Sterling Ins. Co., 28 Misc.3d 90 (2d Dep t 2010) (Homeowner s Policy Deemed Ambiguous As To Limitations Period For Actions Seeking Additional Living Expenses). Schindler v. Travelers Companies, Inc., No (Sup. Ct. N.Y. Co. Aug. 12, 2010) (Court Upholds One Year Time Limit For Suit Against Homeowners Insurer). Woodhams v. Allstate Fire and Cas. Co., 2010 U.S. Dist. Lexis (S.D.N.Y. Sept. 28, 2010) (Policy s 180 Day Completion Requirement Not Barred By New York Law). Bad Faith/Extra Contractual... 8 Wilner v. Allstate Ins. Co., 71 A.D.3d 155 (2d Dep t 2010) (Second Department Permits 349 Claim To Proceed Against Homeowners Insurer). Gallaher v. Republic Franklin Ins. Co., 70 A.D.3d 1359 (4th Dep t 2010) (Volunteer Firefighter Allegedly Injured Outside Truck While Directing Traffic At Accident Site Not Entitled to SUM Coverage). Cooper v. New York Cent. Mut. Fire Ins. Co., 72 A.D.3d 1556 (4th Dep t 2010) (Appellate Court Rejects Bad Faith, Fraud, Breach Of Contract, And Punitive Damages Claim). CBL Path, Inc. v. Lexington Ins. Co., 73 A.D.3d 829 (2d Dep t 2010) (Bad Faith Action Against Insurer Failed Where There Had Been No Pre Litigation Settlement Demand Within Policy Limit). Doherty v. Merchants Mut. Ins. Co., 74 A.D.3d 1870 (4 th Dep t 2010) (Bad Faith Claim Fails Where Insured Had Not Lost Opportunity To Settle After His Liability Was Clear). Cirone v. Tower Ins. Co. of N.Y., 76 A.D.3d 883 (1st Dep t 2010) (Insured s Assignees May Not Bring Bad Faith Action Against Insurer Where Insured Could Not Assert That Claim). Miscellaneous... 9 Bausch & Lomb Inc. v. Lexington Ins. Co., 679 F.Supp. 2d 345 (W.D.N.Y. 2009) (Thousands Of Claims Arising From Consumers Use Of Contact Lens Solutions Deemed Separate Occurrences). Schad v. Stamford Health System, Inc., 358 Fd. Appx. 242 (2d Cir. 2009) (Failure To File Evidence Of Insurability To Qualify For A Requested Benefits Increase Precludes Life Insurance Claim). Barnes v. American Int l Life Assur. Co. of N.Y., 2010 U.S. Dist. LEXIS 9503 (S.D.N.Y. Feb. 4, 2010) (Court Finds Coverage Under Group Accidental Death And Dismemberment Insurance Policy For Woman Who Died After Elective Surgery). Severino v. Brookset Hous. Dev. Fund Corp., 71 A.D.3d 607 (1st Dep t 2010) (Court Denies Insurer s Motion To Intervene In Third Party Action Against Employer Upon Finding That Contention That Its Rights Were Not Being Protected Was Speculative ). Doe v. Blue Cross Blue Shield of Massachusetts, Inc., 2010 U.S. Dist. Lexis (S.D.N.Y. Apr. 12, 2010) (Court Upholds Denial Of Coverage For Donor Egg Procedure). Blue Ridge Ins. Co. v. Empire Contr. & Sales, Inc., 73 A.D.3d 959 (2d Dep t 2010) (Insurer s Declaratory Judgment Action Constituted Timely Notice Of Disclaimer, Second Department Decides). Fruit & Vegetable Supreme, Inc. v. The Hartford Steam Boiler Inspection & Ins. Co., 28 Misc.3d 1128 (Sup. Ct. Kings Co. 2010) (Spoilage And Resulting Loss Of Income Allegedly Due To Blackout Are Not Recoverable Under Equipment Breakdown Insurance Policy). Desai v. Provident Mut. Life Ins. Co. of Phila., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. Aug. 2, 2010) (In House Counsel May Invoke Attorney Client Privilege In Medical Doctor s Suit Seeking Payment Of Disability Claims). Page iii

5 O Keefe v. Allstate Ins. Co., 2010 N.Y. Slip Op U (Sup. Ct. Nassau Co. Sept. 16, 2010) (Insureds Claims Against Insurer s Employees Are Dismissed). Metz v. U.S. Life Ins. Co., 2010 U.S. Dist. Lexis (S.D.N.Y. Sept. 13, 2010) (Amount Paid Not Billed For Covered Medical Treatment Credited Towards Policy s Deductible). Ruiz v. Frog Co., LLC, 77 A.D.3d 513 (1st Dep t 2010) (Law Firm Can Withdraw When Policy s Per Occurrence Limit Is Reached). Hunter v. OOIDA Risk Retention Group, Inc., 2010 N.Y. Slip Op (2d Dep t Oct. 5, 2010) (Insurer Not Entitled To Inter Company Loss Transfer Arbitration, Court Rules). Federal Ins. Co. v. International Bus. Machines Corp., 2010 N.Y. Slip Op (2d Dep t Nov. 9, 2010) (No Coverage Under Fiduciary Liability Policy Where Insured Did Not Act In Fiduciary Capacity). Brondon v. The Prudential Ins. Co. of Amer., No. 09 CV 6166T (W.D.N.Y. Nov. 9, 2010). (Finding Question About Heart Trouble Ambiguous, Court Orders Insurer To Pay Death Benefits). Page iv

6 Additional and Named Insureds Insurer Has Duty To Defend Town As Additional Insured After Collapse Of Town Owned Dam Reconstructed By Named Insured After the Kubricky Construction Corp. reconstructed a town owned dam, the dam failed. The town was sued, and it sought a defense from Kubricky s insurer as an additional insured. The Appellate Division, Third Department, held that the town was entitled to a defense. The court acknowledged that the additional insured coverage remained in effect only as long as Kubricky, the named insured, had ongoing operations at the project, and that major construction had ended before the dam s failure. However, the court concluded, inspection of the project by the engineer, which was required before Kubricky s work was considered completed under the contract, had not yet occurred. [Town of Fort Ann v. Liberty Mut. Ins. Co., 69 A.D.3d 1261 (3d Dep t, Court Orders Insurer To Reimburse Additional Insured s Legal Fees After Finding Additional Insured s Own Coverage Was Excess After the Village of Brewster contracted with a construction company for new water distribution and wastewater collection systems, the company obtained a comprehensive general liability ( CGL ) insurance policy from Virginia Surety Company that named the village as an additional insured; the village also had a CGL insurance policy from New York Municipal Insurance Reciprocal ( NYMIR ). During the course of the contractor s work, a water main broke. Thereafter, two residents sued the village and the company for property damage. With respect to the priority of coverage, the court explained that each policy generally provided primary coverage. However, NYMIR s other insurance clause provided that its coverage was excess where NYMIR was added as an additional insured on another policy. Accordingly, the court found NYMIR s coverage was excess to Virginia Surety s coverage, and Virginia Surety had to reimburse NYMIR for the legal fees and costs it had incurred in defending the village in the underlying actions. [Village of Brewster v. Virginia Sur. Co., Inc., 70 A.D.2d 1239 (3d Dep t, Question of Fact As To Whether Building Owner Covered Even Though Not An Insured Yashi Associates owned a building that it leased to Glendale Convenience Store. A woman allegedly fell in the parking lot and sued Glendale and Yashi. The lease required Glendale to maintain an insurance policy that named Yashi as an additional insured, but the policy obtained by Glendale did not do so. The insurer disclaimed coverage for Yashi, which brought suit against the insurer. The Appellate Division, Second Department, acknowledged that Yashi was not an insured. Contrary to the policy language, however, the court opined that there was a question of fact precluding summary judgment. The policy excluded coverage to an insured for bodily injury assumed under a contract, except this did not apply to an incidental contract, which included leases. Although the court acknowledged that the provision did not expressly provide coverage to Yashi, it found a triable issue of fact as to whether the insurer was obligated to defend and to indemnify Yashi by operation of the policy and lease. [Majawalla v. Utica First Ins. Co., 71 A.D.3d 958 (2d Dep t Top New York Court Finds Construction Manager Is An Additional Insured Where Named Insured s Employee Claimed Injury Regal Construction Corp. contracted with URS Corp., the construction manager, to work on a project at New York City s Rikers Island. The commercial general liability ( CGL ) insurance policy obtained by Regal covered URS as an additional insured only with respect to liability arising out of [Regal s] ongoing operations performed for URS. Regal s project manager allegedly was injured while working at the site, and he brought suit. In the coverage litigation that ensued, the New York Court of Appeals ruled that the liability arose out of Regal s work for URS, so Regal s insurer owed additional insured coverage to URS in the project manager s bodily injury action. The Court found that the underlying complaint s allegation of negligence on the part of URS and not Regal was of no consequence. [Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, 15 N.Y.3d 34 ( Appellate Court Rules Hold Harmless Agreement Did Not Require Insured To Name Owner As Additional Insured A property owner entered into a construction contract with U.S.A. Interior, LLC ( USAI ) for USAI to perform demolition work at the owner s property. The parties written agreement was a one page proposal from USAI and a hold harmless agreement. The CGL insurance policy issued to USAI contained an additional insured endorsement that added as an insured any entity the Named Insured is required in a written contract to name as an insured. [Emphasis added]. The Appellate Division, Second Department, affirmed the trial court s decision in favor of the insurer. The appellate court explained that although USAI had agreed in writing to indemnify the owner in the hold harmless agreement,

7 that agreement did not contain any requirement that USAI name the owner as an additional insured under the policy. [Hargob Realty Assoc., Inc. v. Fireman s Fund Ins. Co., 73 A.D.3d 856 (2d Dep t No Coverage For Construction Manager That Did Not Have Written Contract With Insured Providing It Would Be Named An Additional Insured A project s construction manager was sued in a personal injury action allegedly arising from the project. The manager sought coverage as an additional insured under an insurance policy that had been issued to a subcontractor which had been hired to perform steel work on the project. The court observed that, for the manager to qualify as an additional insured, the subcontractor must have agreed in writing with the manager to add it as an additional insured on the policy, but the court found that no such agreement existed. The court ruled that, contrary to the manager s contention, the contract between the general contractor and subcontractor was not such an agreement because the manager was not a party to it. [Skanska USA Bldg Inc. v. Burlington Ins. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. July 15, Allegations Sufficient To Find Obligation To Defend Additional Insured Under Caused By Provision An employee of Metal Sales Company, Inc., who was working on the construction of the Manhattan Family Court building, brought a personal injury suit against the project s general contractor, which then brought a third party action against Metal Sales and W&W Glass Systems, Inc. The general contractor alleged that, in the event the general contractor was held liable for the injuries to the Metal Sales employee, such liability was caused by the negligence of W&W and/or Metal Sales, rendering these third party defendants liable to the general contractor. The insurance policy obtained by Metal Sales included an additional insured endorsement providing coverage with respect to liability caused by your ongoing operations performed for that insured. W&W claimed to be an additional insured under the endorsement. The court held that the allegations of the third party complaint were sufficient to trigger the insurer s duty to defend W&W. [W&W Glass Sys., Inc. v. Admiral Ins. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co. July 29, Court Finds Additional Insured Coverage Under Policy of Claimant s Employer An electrician alleged that he was injured when he tripped while exiting the restroom at a construction project. He brought suit against the general contractor which sought coverage as an additional insured under the general liability policy of the electrician s employer. The policy provided additional insured coverage where required by contract for liability arising out of the employer s work. The court noted that its earlier decision, saying that the provision in the purchase order regarding contractual indemnification is void against public policy, is not determinative of the validity and enforceability of the insurance procurement provision. The court held that the claimant s injury arose out of the employer s work on the project and, therefore, the general contractor qualified as an additional insured. [Lehr Constr. Co. v. Continental Cas. Co., 2010 N.Y. Slip Op (U) (Sup. Ct. N.Y. Co., Aug. 13, 2010)..] Verbal Understanding Insufficient To Lead To Additional Insured Coverage A construction manager s verbal understanding that a subcontractor would provide additional insured coverage was insufficient to require the insurer to defend or to indemnify the construction manager. The court explained that even if a verbal understanding constituted an agreement to have the construction manager named as an additional insured, the additional insured endorsement required that the agreement be executed prior to the loss for which coverage was sought, and the agreement was neither reflected in a signed document nor fully performed by the parties. [Empire Bldrs. & Developers, Inc. v. Delos Ins. Co., 2010 N.Y. Slip Op (2d Dep t Nov. 9, Conditions Precedent/Late Notice Insurer That Could Have Moved To Vacate Default Judgment And For Leave To File Late Answer Failed To Demonstrate Prejudice, First Department Rules After allegedly being injured in a car accident, the injured party timely notified the alleged tortfeasor s insurer of his injuries and claim. In turn, the injured party filed an action against the alleged tortfeasor insured and moved for default when the insured failed to answer. The insurer disclaimed coverage, stating that its receipt of the default judgment motion was its first notification of any legal action against its insured. The court entered a default judgment against the insured and ordered that he pay $250,000 in damages. The insurer filed a declaratory action against the insured. The Appellate Division, First Department, opined that the insurer could disclaim coverage for untimely notice of the underlying action only if it could show prejudice given that it had received timely notice of claim. It then ruled that the insurer had not demonstrated prejudice, noting that the insurer could have appeared, opposed the [default] motion, and filed for leave to file a late answer. A dissenting justice stated that the insurer should only be obligated to defend and/or to indemnify the insured if the defendant consented to vacatur of the default judgment so that the insurer could file an answer, but the majority upheld the lower court s grant of summary judgment against the insurer. [American Transit Ins. Co. v. Hashim, 68 A.D.3d 618 (1st Dep t 2009).] 2

8 Bar Owner s Five Month Delay In Notifying Insurer Following Bar Fight Dooms Claim The owner of a bar became aware about one week after an incident that a patron of his bar had potentially assaulted another patron on his premises, but he did not notify his insurer for five months. The Appellate Division, First Department, found that delay unreasonable as a matter of law. The court also rejected the insured s claimed belief of nonliability on the basis that none of his employees had been involved in the incident, ruling it was not reasonable under the circumstances. Tower Ins. Co. of N.Y. v. Miles, 74 A.D.3d 410 (1st Dep t Four Month Delay In Disclaiming For Failure To Notify As Soon As Practicable Deemed Unreasonable An electrical contractor obtained liability coverage naming a construction manager as an additional insured. An employee of the contractor allegedly was injured at the construction site in March 2007 and brought suit against the manager on November 21, 2007; the manager notified the insurer on January 7, On January 25, 2008, the insurer stated it would investigate whether the manager was covered and whether the notice was timely. The insurer disclaimed coverage on May 8, and the manager brought suit. The court explained that the insurer s contention that the manager had not notified it as soon as practicable would have been apparent upon examination of the manager s January 7, 2008 tender. Accordingly, it concluded, the insurer s four month delay in disclaiming on this ground was unreasonable as a matter of law pursuant to 3420(d) of the New York Insurance Law. [Hunter Roberts Constr. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404 (1st Dep t, Failure To Notify Insurer For Years Dooms Coverage For Bodily Injury Claim An agreement between New York University and a maintenance contractor ( ABM ) required that ABM obtain insurance naming NYU as an additional insured. An accident allegedly occurred at NYU on March 6, 2003, but NYU first gave notice to the insurer, Continental, on August 14, 2008, when it sued Continental. The court found that Continental had not received timely notice of the underlying accident and, therefore, had no obligation to defend or to indemnify NYU. The court rejected NYU s argument that the delay resulted from being told by ABM that it had a different insurer. The court reasoned that if NYU had exercised its right under its contract with ABM to approve ABM s insurance, it would have learned earlier that ABM s insurer was Continental. [New York Univ. v. American Bldg. Maintenance, 2010 N.Y. Slip Op (1st Dep t, Nov. 30, Coverage Grant No Coverage For Alleged Fall At Property Not Listed As A Designated Premises An individual allegedly injured at a site in Nassau County brought suit against Richner Communications, Inc. After Richner s insurer disclaimed on the ground that the Nassau property was not covered under the policy, Richner brought suit. The Supreme Court, Queens County, denied the insurer s summary judgment motion, and the insurer appealed. The Appellate Division, Second Department, reversed. The appellate court explained that the policy contained an endorsement that expressly limited coverage to certain Designated Premises, and that, at the time of the alleged accident, the Nassau property was not listed. Given the endorsement, the appellate court rejected Richner s contention that the policy was ambiguous because it stated that it applied to bodily injury caused by an occurrence that took place in the coverage territory. Richner Communications, Inc. v. Tower Ins. Co. of N.Y., 72 A.D.3d 670 (2d Dep t No Coverage For Mold Case Where Alleged Injury Outside Policy Period The underlying plaintiff s allegation of exposure to mold during the policy period did not trigger any duty to defend or to indemnify where the injury allegedly occurred after the policy period. As the court reasoned, New York follows the injury in fact test that rests on when the injury, sickness, disease or disability actually began and... requires the insured to demonstrate actual damage or injury during the policy period. [Downey v. 10 Realty Co., LLC, 2010 N.Y. Slip Op (1st Dep t Nov. 23, Exclusions Title Insurer Need Not Defend Homeowner In Adverse Possession Case Involving Allegedly Misplaced Fence Where Policy Had Specific Exclusion For Fences A complaint for adverse possession against homeowners was based upon the location of a fence that allegedly varied from the actual boundary line. The title insurer relied upon an exclusion in the title insurance policy that excluded fences... [that] vary with the record lines. The homeowners argued that the pre policy certificate of title and the marked title report revealed an intention to cover claims based upon a fence that varied from the actual boundary line. The Appellate Division, First Department rejected the homeowners argument, finding that any such intention did not survive issuance of the policy. [Frydman v. Fidelity National Title Ins. Co., 68 A.D.3d 622 (1st Dep t, 2009).] Broad Employee Exclusion In Insured s Policy Dooms Coverage For Suit By Contractor s Employee After the insured, Matthew Davis Events ( MDE ), agreed to manage a party for a 3

9 customer, it contracted with United Stage Service, Inc. ( Stage ) to work the event. A Stage employee who allegedly was injured brought suit against MDE, and MDE s insurer disclaimed coverage based upon an exclusion for bodily injury to an employee of an insured. The exclusion defined employee as including a person hired by, liable to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured. MDE argued that the employee exclusion was ambiguous as to whether Stage s employees were included. The Appellate Division, First Department disagreed, holding that the employee exclusion clearly contemplate[d] that an injury to a contractor or its employee was within the scope of the exclusion. [Nautilus Ins. Co. v. Matthew David Events, Ltd., 69 A.D.3d 457 (1st Dep t Federal Court Finds That Independent Contractor Exclusion Is Unambiguous, And That Insurer Is Not Estopped From Maintaining Allegedly Untimely Disclaimer For Property Damage Claims Where No Prejudice A plumber working in an apartment building failed to cap a leak in a gas pipe, leading to an explosion, a tenant s death, and the destruction of the building. The building owners were sued, and their premises liability policy insurer filed a declaratory judgment action, arguing that it had properly disclaimed coverage based upon, among other things, a policy exclusion for work done by an independent contractor. The district court found that the independent contractor exclusion was unambiguous, valid, and applicable. The court, however, ruled that the insurer s disclaimer with respect to the personal injury and wrongful death claim against the building owners was untimely under Insurance Law 3420(d). The court added that 3420(d) did not apply to the claims for property damage, but that disclaimers relating to such claims were subject to common law equitable estoppel. It then found, however, that the building owner had failed to demonstrate that they had been prejudiced by the insurer s alleged late disclaimer, as required for equitable estoppel. Accordingly, the court concluded that the insurer was entitled to a declaration of noncoverage with respect to the property damage claims against the building owners. [U.S. Underwriters Ins. Co. v. Landau, 679 F.Supp. 2d 330 (E.D.N.Y. No Coverage Where Injured Party Was Employee Of Another Insured In this declaratory judgment action, the owner and tenant of an accident site sought coverage for a personal injury suit brought by an employee of another insured. The owner, tenant and claimant s employer were all insureds under the policy. The Appellate Division, First Department, held that the insurer had no obligation to defend or to indemnify any of the insureds. It explained that the Exclusion Cross Liability endorsement stated that the insurance did not apply to any actual or alleged bodily injury to an employee of any insured. That language excluded coverage even where the injured party was an employee of another insured under the policy, the appellate court ruled. It added that neither the policy s general Separation of Insureds provision, nor the separation of insureds doctrine, rendered the exclusion ambiguous. [Drk, LLC v. Burlington Ins. Co., 74 A.D.3d 693 (1st Dep t No Coverage Where Insureds Son Had Urged And/Or Encouraged Alleged Assault A lawsuit alleged that the insureds son had urged and/or encouraged others to beat two people with a bat. After the negligence claim was dismissed, the court agreed that the insurers had no duty to defend or to indemnify the son because the policies did not cover the remaining causes of action, which, the court said, involved intentional torts (concerted action in perpetrating an assault and aiding and abetting an assault). Specifically, there was no occurrence and the expected or intended exclusion operated to preclude coverage. Although the insureds son had not committed the alleged assault, the court found that the alleged injuries would not have been unexpected and unintended from [the son s] point of view. [Travco Ins. Co. v. Donaghy, No /2009 (Sup. Ct. Queens Co. June 16, Auto Exclusion Bars CGL Coverage Where Injured Person Slipped While Entering Car The plaintiff sued a property owner for negligently allowing a parking lot to remain in an uneven, snowy and icy condition, asserting that she was injured when she slipped as she opened the door to enter her father s car. The insurer that had issued the snow removal contractor a commercial general liability insurance policy disclaimed coverage based on the exclusion for personal injuries arising out of the use of any auto, whether owned by the insured or not. [DMP Contr. Corp. v. Essex Ins. Co., 76 A.D.3d 84 (1st Dep t Insurer Must Defend Restaurant Owner In Suit Following Fight At Party A restaurant employee fatally stabbed a guest and injured another person at a party hosted at the restaurant by the owner. The Appellate Division, First Department, agreed with one insurer that it had no duty to defend or to indemnify the restaurant owner based upon the assault and battery exclusion in the commercial lines policy it had issued. However, it rejected the other insurer s argument that it had no duty to defend or to indemnify the owner under the homeowners policy it had issued. The court noted that there was an exception to the business pursuits exclusion in the policy for activities which are ordinarily incident to non business pursuits. The court found that the party was ordinarily incident to a 4

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