7/15/99: CHEPERUK v. LIBERTY MUTUAL FIRE INSURANCE COMPANY
7/12/99: SHAY v. JERKINS
7/9/99: SWEET HOME CENTRAL SCHOOL DISTRICT v. AETNA COMMERCIAL INSURANCE COMPANY
7/8/99: CONSOLIDATED EDISON CO. OF NEW YORK, INC. v. USF&G
Hurwitz & Fine, P.C. is a full-service law firm
STANLEY CHEPERUK et al.,
LIBERTY MUTUAL FIRE INSURANCE
Calendar Date: May 28, 1999
Before: Cardona, P.J., Crew III, Yesawich Jr., Peters and
Lewis & Stanzione (Ralph C. Lewis Jr. of counsel), Catskill, for appellants-respondents.
Bouck, Holloway, Kiernan & Casey (Daniel P. Mulligan of counsel), Albany, for respondent-appellant.
Cross appeals from an order of the Supreme Court (Connor, J.), entered January 13, 1999 in Greene County, which denied plaintiffs' and defendant's motions for partial summary judgment.
Plaintiff Stanley Cheperuk contracted with defendant to provide a homeowner's insurance policy for residential property in Greene County. At the time the policy was issued, Union Bank was the holder of the mortgage and therefore named as the mortgagee on the policy. In March 1995, Union Bank assigned the mortgage to Union Deposit Loan and Investment Bank, but defendant was not instructed to modify the policy to reflect this change in the named mortgagee. Thereafter, the mortgage was assigned to First Union Home Equity Bank.
After their home was destroyed by a fire in February 1996, plaintiffs filed a proof of loss in support of their claim for fire damages. After its investigation, defendant denied the claim alleging that plaintiffs may have been involved in causing the fire. Rejection of the claim prompted plaintiffs to commence this breach of contract action contending, inter alia, entitlement to proceeds under the terms of the insurance policy. In their amended complaint plaintiffs interposed a second cause of action seeking reformation of the insurance policy to correct the name of the mortgagee from Union Bank to First Union. Plaintiffs moved for partial summary judgment on the second cause of action and defendant cross-moved for summary judgment dismissing the second cause of action on the basis that First Union was not a party to the contract and that the claim was untimely. Supreme Court denied both motions finding that a question of fact existed with respect to plaintiffs' alleged role in setting the fire. This appeal by both parties ensued.
A party is entitled to reformation where "the writing in question was executed under mutual mistake or unilateral mistake coupled with fraud" (Leavitt-Berner Tanning Corp. v American Home Assur. Co., 129 AD2d 199, 201-202, lv denied 70 NY2d 609; see, Keiser v Goetz, 235 AD2d 689). Where it is apparent that an innocent mistake occurred with respect to a named insured and it is evident that the parties intended to cover the risk, the error may be deemed mutual for purposes of reformation even though the insurer was not aware of the error (see, Court Tobacco Stores v Great E. Ins. Co., 43 AD2d 561; Matter of Lipschitz v Hotel Charles, 226 App Div 839, 840, affd 252 NY 518). Here, it is clear that the parties intended to cover the risk and the failure to change the name of the mortgagee on the policy was inadvertent. Moreover, defendant does not claim that it would have discontinued coverage had it been informed of the change of mortgagee. Because the identity of the mortgagee was relatively unimportant, we conclude that under these circumstances, plaintiffs were "entitled to equitable reformation of the policy to correct the obvious inadvertent misidentification" of the named mortgagee (New York Cas. Ins. Co. v Shaker Pine, AD2d ___ [June 10, 1999], slip opn p 3; see, Anand v GA Ins. Co. of N.Y., 228 AD2d 397, 398-399; Crivella v Transit Cas. Co., 116 AD2d 1007, 1008; see also, De Santis v Dryden Mutual Ins. Co., 241 AD2d 916; Fahey v Security Mut. Life Ins. Co., 74 AD2d 984). Accordingly, plaintiffs should have been permitted to reform the contract to identify First Union as the named mortgagee and summary judgment on their second cause of action should have been granted.
Next, we conclude that defendant's assertion that plaintiffs' second cause of action should be dismissed for failure to commence the action within the two-year limitations period as set forth in the policy of insurance is without merit. Although plaintiffs did not serve the amended complaint within the two-year period, their original complaint was timely filed. Pursuant to CPLR 203 (f), "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading". Plaintiffs' original complaint sufficiently notified defendant of the fire and the underlying facts giving rise to both causes of action emanating from the insurance policy. The facts supporting the second cause of action contained in the amended complaint were specifically included in the original complaint and, therefore, plaintiffs' amended complaint related back to the original complaint for purposes of the applicable limitations period (see, Caffaro v Trayna, 35 NY2d 245; Anderson v Carney, 161 AD2d 1002; Weitzenberg v Nassau County Dept. of Recreation & Parks, 249 AD2d 538).
Cardona, P.J., Crew III, Yesawich Jr. and Peters, JJ., concur.
ORDERED that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as denied plaintiffs' motion for summary judgment on the second cause of action in the amended complaint; motion granted to the extent that insurance policy number H32-221-428491-906-6, issued by defendant, is hereby reformed to identify First Union Home Equity Bank as the mortgagee and defendant is hereby directed to pay said mortgagee in accordance with the terms of said policy; and, as so modified, affirmed.
Michael J. Novack
Clerk of the Court
: While defendant argues that reformation is not warranted, it acknowledges that the policy at issue provides coverage to a properly named mortgagee notwithstanding an allegation that the named insured was involved in causing the fire. In light of our holding with respect to reformation, it follows that plaintiffs are entitled to summary judgment with respect to their second cause of action seeking payment on behalf of First Union.
SHAY v JERKINS
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
AD2d Submitted - May 19, 1999
GUY JAMES MANGANO, P.J.
FRED T. SANTUCCI
GABRIEL M. KRAUSMAN
ANITA R. FLORIO
HOWARD MILLER, JJ.
DECISION & ORDER
Toni A. Shay, etc., et al., respondents, v David A. Jerkins, appellant.
Richard J. Inzerillo, P.C., Smithtown, N.Y. (Daniel P. Gregory of counsel), for appellant.
Schoen Schoen & Strassman, Huntington, N.Y. (David I. Schoen of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated July 27, 1998, as denied those branches of his motion which were to dismiss (a) the causes of action asserted by the plaintiffs Toni A. Shay and Lauren Shay on the ground that they did not sustain serious injuries within the meaning of Insurance Law § 5102(d), and (b) the derivative causes of action asserted by the plaintiff Kevin Shay.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant's motion which were to dismiss the causes of action asserted by the plaintiffs Toni A. Shay, Lauren Shay, and Kevin Shay are granted and the complaint is dismissed.
The affirmed reports prepared by a board certified orthopedic surgeon, Dr. Lawrence Miller, which the defendant submitted in support of his motion for summary judgment made out a prima facie case (see, CPLR 3212[b]) that the plaintiffs, Toni A. Shay and Lauren Shay did not sustain serious injuries within the meaning of Insurance Law § 5102(d).
The medical evidence which the plaintiffs submitted in opposition to the motion consisted of the affidavits sworn to by an orthopedist, Dr. David J. Weissberg and a physical therapist, Robert Shapiro. Dr. Weissberg's finding that the plaintiff Lauren Shay had sustained a permanent loss of use of a body organ, member, function, or system was improperly based on her subjective complaints of pain (see, Licari v Elliott, 57 NY2d 230). Dr. Weissberg's conclusion that the plaintiff Toni A. Shay had sustained a serious injury was based, inter alia, on the results of a Magnetic Resonance Imaging test (hereinafter MRI) which she had undergone. However, he did not indicate that he reviewed the actual MRI films nor did he attach a copy of a sworn MRI report to his affidavit. Therefore, the evidence was insufficient to establish that Toni A. Shay sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Merisca v Alford, 243 AD2d 613; Friedmann v U-Haul Truck Rental, 216 AD2d 266).
The affidavit of the physical therapist was "of limited probative value" for the reasons stated by Justice Oshrin in the order which is the subject of this appeal.
The plaintiffs Toni A. Shay and Lauren Shay have thus failed to raise a triable issue of fact (see, CPLR 3212[b]), and the causes of action asserted by them are dismissed. In light of our determination the derivative claims asserted by Kevin Shay must also be dismissed.
MANGANO, P.J., SANTUCCI, KRAUSMAN, FLORIO, and H. MILLER, JJ., concur.
Martin H. Brownstein
98-3715. (Erie Co.) -- SWEET HOME CENTRAL SCHOOL DISTRICT OF AMHERST AND TONAWANDA, PLAINTIFF-APPELLANT, V AETNA COMMERCIAL INSURANCE COMPANY AND AETNA CASUALTY AND SURETY COMPANY, DEFENDANTS-RESPONDENTS. -- Judgment affirmed without costs. Memorandum: Plaintiff, Sweet Home Central School District of Amherst and Tonawanda (Sweet Home), commenced this declaratory judgment action seeking a declaration that its insurers, defendants, Aetna Commercial Insurance Company and Aetna Casualty and Surety Company (Aetna), have a duty to defend and/or indemnify it in an underlying action alleging that one of its teachers had assaulted and sexually abused three students. Supreme Court denied Sweet Home’s motion for summary judgment and granted Aetna’s cross motion for summary judgment, declaring that Aetna had no duty to defend or indemnify Sweet Home in the underlying action. The court concluded that the complaint against Sweet Home did not allege an "occurrence" within the meaning of the insurance policies.
We affirm. Contrary to the view expressed by the dissent, it is the nature of the underlying acts, not the theory of liability, that governs. Because the operative acts giving rise to any recovery are intentional acts, i.e., assault and sexual abuse, it is of no import that the complaint in the underlying action alleges only negligent hiring, retention and supervision on the part of Sweet Home (see, Green Chimneys School for Little Folk v National Union Fire Ins. Co. of Pittsburgh, Pa., 244 AD2d 387, 387; Public Serv. Mut. Ins. Co. v Camp Raleigh, 233 AD2d 273, lv denied 90 NY2d 801; Board of Educ. v Continental Ins. Co., 198 AD2d 816, 816-817). It is also of no import that the complaint in the underlying action alleges conduct that was outside the scope of the teacher’s employment (see, Massachusetts Bay Ins. Co. v National Sur. Corp., 215 AD2d 456, 459, lv denied 87 NY2d 806). The decisions on which the dissent primarily relies are inapposite. In Walker Baptist Church v Aetna Cas. & Sur. Co. (178 AD2d 923), the allegations of negligent supervision were based on a pastor’s conduct in persuading a parishioner to part with her property via contributions -- conduct that is not necessarily or solely intentional in nature. In Allstate Ins. Co. v Klock Oil Co. (73 AD2d 486), a pollution exclusion clause was involved, not a coverage question, and the alleged underlying acts were negligent installation and maintenance of a gasoline tank, not solely intentional acts of assault and sexual abuse.
All concur except Green, J. P., and Pigott, Jr., J., who dissent and vote to reverse in the following Memorandum: Because we disagree with the majority’s conclusion that defendants, Aetna Commercial Insurance Company and Aetna Casualty and Surety Company (Aetna), have no duty to defend or indemnify plaintiff, Sweet Home Central School District of Amherst and Tonawanda (Sweet Home), we respectfully dissent for two reasons.
First, the policies define an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." "In deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured [emphasis supplied], whether the loss was unexpected, unusual and unforeseen (see, Miller v Continental Ins. Co., 40 NY2d 675, 677)" (Allegany Co-op Ins. Co. v Kohorst, 254 AD2d 744; cf., General Acc. Ins. Co. v Zazynski, 229 AD2d 920, 921). "In determining whether an act is an occurrence, the policy terms must be read >narrowly, barring recovery only when the insured intended the damages’" (Dryden Mut. Ins. Co. v Brockman, ___ AD2d ___ [decided Mar. 19, 1999], quoting Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 649). Here, although the complaint in the underlying action alleges intentional acts of assault and sexual abuse by the teacher, it alleges only the negligent hiring, retention and supervision of that teacher by Sweet Home. The complaint in the underlying action alleges conduct by the teacher that was outside the scope of his employment, and thus Sweet Home cannot be liable on the basis of respondeat superior (see, Judith M. v Sisters of Charity Hosp., ___ NY2d ___ [decided June 3, 1999]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161, lv dismissed 91 NY2d 848, cert denied ___ US ___, 118 S Ct 413). Therefore, because the complaint in the underlying action does not allege any intentional conduct on the part of Sweet Home, the complaint alleges an occurrence within the meaning of the policies (see, Walker Baptist Church v Aetna Cas. & Sur. Co., 178 AD2d 923, 924; Allstate Ins. Co. v Klock Oil Co., 73 AD2d 486, 488).
To interpret the term "occurrence" in the manner of the majority renders superfluous the exclusion in the policy for acts either intended or expected by the insured. It is well settled that, in construing a policy, "the court must examine >the entire contract to determine its purpose and effect and the apparent intent of the parties’" (Meyers & Sons Corp. v Zurich Am. Ins. Group, 74 NY2d 298, 303, quoting Murray Oil Prods. v Royal Exch. Assur. Co., 21 NY2d 440, 445), and that "a policy’s terms should not be assumed to be superfluous or to have been idly inserted" (Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 50, affd 66 NY2d 1020; see also, Handelsman v Sea Ins. Co., 85 NY2d 96, 101, rearg denied 85 NY2d 924). In our view, the majority’s affirmance is inconsistent with those established principles.
Aetna’s reliance upon this Court’s decision in Board of Educ. v Continental Ins. Co. (198 AD2d 816) is misplaced. In that case, the school district was charged with sexual harassment by an employee based upon the conduct of another employee. We held that, although the complaint against the school district was couched in terms of negligence, the gravamen of the complaint was intentional acts and violations of State and Federal statutes by the school district itself. Here, however, the gravamen of the complaint against Sweet Home is negligence, and thus Sweet Home is entitled to coverage under the policies. To the extent that the First Department’s decision in Public Serv. Mut. Ins. Co. v Camp Raleigh (233 AD2d 273, lv denied 90 NY2d 801) is to the contrary, we would decline to follow it.
Secondly, we believe Aetna’s reliance upon Mount Vernon Fire Ins. Co. v Creative Hous. (88 NY2d 347) and U.S. Underwriters Ins. Co. v Val-Blue Corp. (85 NY2d 821) is likewise misplaced. In those cases, the Court of Appeals interpreted exclusions in policies for claims based upon or arising out of an assault or battery whether or not committed by or at the direction of the insured. In determining that the exclusion in each case applied, the Court of Appeals adopted a "but for" test, concluding that the claim that the employer negligently failed to maintain safe premises could not be established without proving the underlying assault. Here, by contrast, we are asked to interpret the term "occurrence". We reject Aetna’s argument that the "but for" test should be extended to that analysis. There is no indication in either Mount Vernon or Val-Blue that the Court of Appeals intended to abrogate the case law concerning the interpretation of the term "occurrence".
The policies contain an exclusion for bodily injury or property damage "expected or intended from the standpoint of the insured." Because no evidence was presented that Sweet Home expected or intended the acts upon which the underlying complaint is based, that exclusion does not apply (cf., Dryden Mut. Ins. Co. v Brockman, supra; Mattress Discounters of N. Y. v United States Fire Ins. Co., 251 AD2d 384, lv denied 92 NY2d 817). We would, therefore, reverse the judgment, deny the cross motion, grant the motion and grant judgment in favor of Sweet Home declaring that Aetna is obligated to defend and indemnify Sweet Home in the underlying action. (Appeal from Judgment of Supreme Court, Erie County, Glownia, J. - Summary Judgment.) PRESENT: GREEN, J. P., HAYES, PIGOTT, JR., SCUDDER AND BALIO, JJ. (Filed July 9, 1999.)
Sullivan, J.P., Williams, Rubin, Andrias, Friedman, JJ.
1147 Consolidated Edison Company of
New York, Inc.,
Helman R. Brook
United States Fidelity and
Eric A. Fitzgerald
City Wide Asphalt Paving Co., Inc.,
Order, Supreme Court, New York County (Paula Omansky, J.), entered November 10, 1998, which denied the motion of plaintiff Consolidated Edison Company of New York, Inc. (Con Ed) for summary judgment declaring that defendant United States Fidelity and Guaranty Company (USF&G) is obligated to indemnify plaintiff in the underlying personal injury action and to reimburse it for attorney's fees and defense costs expended in defense of that action, and which granted defendant USF&G's cross-motion for summary judgment and dismissed the complaint as against USF&G and City Wide Asphalt Paving Company, Inc. (City Wide), unanimously reversed, on the law, without costs, the motion granted and the cross motion denied.
Defendant City Wide was engaged by plaintiff Con Ed to perform resurfacing work following the completion of service or installation of utility lines. After approving resurfacing work at the corner of Eighth Avenue and East 35th Street, Con Ed notified the contractor to bring the road surface up to grade. The following day, June 14, 1991, before any further resurfacing work was performed, Enid Salop fell in a depression that had formed in the paved road surface, sustaining a fractured patella. On February 3, 1992, she commenced a personal injury action against the City of New York and Con Ed. The utility commenced a third-party action against City Wide, which was thereafter added as a party defendant in the primary action.
One year later, on February 4, 1993, Con Ed forwarded the summons and complaint to USF&G, requesting that the insurer provide a defense to the Salop action under its general liability policy issued to City Wide, which names Con Ed as an additional insured. By letter dated February 19, 1993, USF&G acknowledged receipt of Con Ed's request, stating that its assumption of the defense, "at this time, would not be prudent on our part. Our investigation into this matter is incomplete." On March 21, 1993 and May 5, 1993, the utility reiterated its request to the carrier, but received no response.
The jury in the Salop action, in which Con Ed was represented by its own counsel, returned a verdict in the amount of $750,000, apportioning fault 30% against the utility and 70%
against City Wide. This Court affirmed the judgment (Salop v City of New York, 246 AD2d 305).
In this declaratory judgment action, Con Ed maintains that defendant USF&G had a duty to defend and indemnify it against liability for Ms. Salop's injuries. The utility seeks recovery of its 30% share of the verdict and reimbursement for $75,323.02 in costs incurred in defending the action. In a motion for summary judgment, Con Ed argued that the provisions of the policy issued to City Wide are sufficiently broad to encompass its liability in the Salop action. The insurer cross-moved for dismissal of the complaint on the ground that Con Ed failed to provide notice of the claim against it for one year after the Salop action was commenced. It further argued that its policy does not cover the utility's active negligence in the inspection and supervision of work performed by another excavation contractor that backfilled the excavation and was not named in the Salop action. In opposition, Con Ed stated that USF&G had never issued a written disclaimer premised upon late notice and is thus barred from raising the issue.
Supreme Court concluded that Con Ed's delay in complying with the policy notification provision was unreasonable, resulting in the failure of "a condition precedent to the insurer's duty to defend or indemnify its insured". However, as
the Court of Appeals stated in Matter of Fireman’s Fund Ins. Co. v Hopkins (88 NY2d 836, 837), "An insurer must give written notice of disclaimer on the ground of late notice 'as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability,' and failure to do so 'precludes effective disclaimer'" (quoting Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029). While USF&G maintains that it disclaimed coverage on or about August 16, 1996, in its answer to this declaratory judgment action, the Court of Appeals in Fireman’s Fund noted that a delay of two months "has been held unreasonable as a matter of law" (supra, citing Hartford Ins. Co. v County of Nassau, supra). A fortiori, the carrier's delay of over three years in disclaiming coverage on the ground of late notice is unreasonable (see also, Public Service Mut. Ins. Co. v 66 Overlook Terrace Corp., 209 AD2d 343, lv dismissed 85 NY2d 1031, 1032) and the insurer is barred from raising the issue in defense of this action.
Con Ed is named as an "insured" under the insurance policy issued to City Wide "with respect to liability arising out of 'your work' for that insured by or for you". "Your work" is defined to mean: "a. Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations." The term further "includes warranties or representations made at any time with respect to the fitness, quality, durability or performance of any of the items included in a or b above".
This Court has rejected the argument, advanced by USF&G, that the language of the additional insured endorsement operates to exclude coverage for injuries arising out of Con Ed's negligence (Consolidated Edison Co. v Hartford Ins. Co., 203 AD2d 83, 84). To the contrary, we have consistently held that any negligence by the additional insured in causing the accident underlying the claim is not material to the application of the additional insured endorsement (id.). As we stated in Tishman Constr. Corp. v CNA Ins. Co., (236 AD2d 211), "The focus of the clause is 'not * * * the precise cause of the accident, as [the insurers] urge, but upon the general nature of the operation in the course of which the injury was sustained'" (quoting Consolidated Edison Co. v Hartford Ins. Co., supra, at 83; see also, Lim v Atlas-Gem Erectors Co., 225 AD2d 304). Con Ed's liability in this matter clearly arises out of work performed on its behalf by the insured and is therefore within the scope of the additional insured endorsement of the policy.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 8, 1999