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05/16/02:         187 CONCOURSE ASSOCS. v. RELIANCE NATL. INDEM. CO.

New York State Supreme Court, Appellate Division, First Department

Plaintiff's Attorney Sanction for Commencing Third Action Regarding Same Property Insurance Claim

The court held that the filing of a third action should have been revealed to defendant’s attorney as soon as plaintiff’s counsel realized he should have commenced the third action in New York County instead of the Bronx, and certainly at a court conference when the subject came up. Accordingly, plaintiff’s counsel’s inherently inconsistent explanations, coupled with his failure to advise both the court and defendant’s attorney that a third action had already been filed, clearly constituted frivolous conduct that delayed and prolonged the litigation.

 

05/16/02:         ZURICH -AMERICAN INS. CO. v. AUDIOVOX CORP.

New York State Supreme Court, Appellate Division, First Department

No Duty to Defend Class Action Seeking Economic Damages as a Result of Inherently Defective Cell phones Because No Coverage Exists for Purely Economic Claims

The motion court correctly held that the underlying proposed class actions for which the insured, a distributor of cell phones, sought a defense under its policies covering damages “because of” or “for” “bodily injury”, were not claims within the coverage of the policies. This is because the actions sought only economic damages measured by the cost of headphones that would allegedly block dangerous radiation emitted by cell phones and, while alleging risk of physical harm, specifically disclaim seeking recovery for anything but the cost of the headphones.

 

05/16/02:         FORD MOTOR CREDIT CO. v. ATLANTIC MUT. INS. CO.

New York State Supreme Court, Appellate Division, First Department

Policy Trumps Binder on Issue of Identify of Insured

While it is true that one of the binders issued by the insurance broker indicated that Ford Motor Credit Company (FMCC) was to be named as an additional insured in the policy covering the automobile leased by plaintiff, the policy subsequently issued by defendant did not name FMCC as an additional insured and “where the provisions of an insurance policy are clear, the contract must be enforced as written.” Although FMCC sought to reform the policy to include itself as an additional insured, it did not come forward with the necessary “evidence of a very high order” “to overcome the heavy presumption that [the] deliberately prepared and executed written instrument manifested the true intention of the parties.” There was evidence before the Special Referee that the vehicle lessee told the broker that FMCC was to be named as an additional insured; however, there was no evidence that the broker communicated that direction to defendant and, thus, no basis for the conclusion, necessary to render FMCC’s claim for reformation viable, that defendant, although intending to name FMCC as an additional insured, simply neglected to do so.

 

05/13/02:         KEENA v. TRAPPEN

New York State Supreme Court, Appellate Division, Second Department

Plaintiff’s Case Dismissed For Failure To Meet “Serious Injury” Threshold

Court held that plaintiff’s proof submitted in opposition to defendant’s summary judgment motion was insufficient to create an issue of fact whether she sustained a “serious injury” as required by the Insurance Law.  The plaintiff submitted affidavits from her treating physician and a chiropractor; however, these affidavits were of no probative value because both were dated more than three years after their last examination of the plaintiff.  In addition, the treating physician only asserted that the plaintiff sustained cervical and lumbar sprains, which do not rise to the level of “serious injury” under the statute.  The court also held that plaintiff did not sustained a medically determined injury or impairment which prevented her from performing substantially all of her usual and customary daily activities for the first 90 of the 180 days immediately following the accident because the affidavit she submitted failed to specify the activities she was allegedly unable to perform after the accident; and she did not submit a physician’s affidavit substantiating the existence of “medically determined” injury which allegedly impaired her activities.

 

05/13/02:         BELT PAINTING CORP. v. TIG INSURANCE COMPANY

New York State Supreme Court, Appellate Division, Second Department

Pollution Exclusion Does Not Apply to Exclude Lead Paint

Whether the terms of the absolute pollution exclusion contained in certain contracts of insurance, including the one under review in this case, should be applied literally so as to exclude coverage even in those cases where the “environment,” as that term is commonly understood, is unaffected by anything which could realistically be defined as “pollution,” is a question which has given rise to extensive litigation. Those courts that have considered this issue have arrived at contrasting conclusions. On this appeal, in accordance with the decision of the Court of Appeals in Westview Assocs. v Guaranty Nat. Ins. Co. (95 NY2d 334), the Court held that the absolute pollution exclusion contained in the policy under review did not apply so as to exclude coverage in the case of a claimant allegedly injured as the result of the temporary indoor dissemination of paint or paint solvent fumes.

 

05/13/02:         CITY OF NEW YORK v. CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON

New York State Supreme Court, Appellate Division, Second Department

Where Two or More Insureds are Defendants in the Same Action, Notice of the Lawsuit Provided by One Insured will be Deemed Notice on Behalf of Both Insureds Only Under Certain Conditions

The appellants City of New York and Brooklyn Navy Yard Development Corporation are defendants in an underlying action. Where two or more insureds are defendants in the same action, notice of the lawsuit provided by one insured will be deemed notice on behalf of both insureds only where the two parties are united in interest or where there is no adversity between them. Here, the Brooklyn Navy Yard provided its insurance carrier, the defendant Certain Underwriters at Lloyd’s of London, England, with notice of the underlying lawsuit, but the City, an additional insured under the policy, did not provide independent notice to Lloyd’s. Contrary to Lloyd’s contention, the Supreme Court erred in granting the motion for summary judgment dismissing the complaint insofar as asserted against it since there are issues of fact as to whether the plaintiffs have adverse interests.

 

05/13/02:         SCHLESINGER v. NATIONWIDE MUTUAL INSURANCE COMPANY

New York State Supreme Court, Appellate Division, Second Department

Relying on Police Report to Identify Insurer Excused Delay in Giving Notice to Uninsured Motorist Carrier

On March 15, 1998, the plaintiff was involved in an automobile accident in Brooklyn with a van owned by Joyner, a New Jersey resident. The police accident report included insurance code “003” for the Joyner van and an insurance policy number. On January 8, 1999, Schlesinger commenced a personal injury action against Joyner and the driver of the van. The process server was unable to locate either party at the address provided on the police accident report and, by notice dated January 14, 1999, plaintiff made a claim for uninsured motorist benefits under his insurance policy with Nationwide. Nationwide disclaimed coverage on the ground that plaintiff failed to give notice of his claim “[a]s soon as practicable.” A subsequent investigation by plaintiff’s attorney revealed that the Joyner van was uninsured at the time of the accident. Plaintiff commenced this action seeking to recover damages for breach of the insurance contract. Nationwide moved to dismiss the complaint on the ground that plaintiff failed to provide timely notice of his claim as required under the terms of the policy. Plaintiff was required to provide notice of his claim for uninsured motorist benefits as soon as practicable after he knew or should have known that the Joyner van was uninsured. Thus, he was required to demonstrate that he acted with due diligence in ascertaining the insurance status of the Joyner van or to provide a reasonable excuse for his delay in ascertaining its insurance status. The Supreme Court properly determined that plaintiff provided Nationwide with notice of his claim as soon as practicable, as required under the policy. Plaintiff was entitled to rely on the insurance code and policy number provided for the Joyner van in the police report as presumptive proof that the vehicle was insured. Nationwide argued that plaintiff should have contacted New Jersey Motor Vehicle Services at an earlier date to verify Joyner’s insurance coverage, but the vehicle registration documents which were provided by that agency in April 1999 in response to a request from plaintiff’s attorney indicated that the Joyner van was insured when registered in March 1997. The record establishes that plaintiff promptly notified Nationwide of his claim upon learning that Joyner could not be located and that the Joyner van might not have insurance coverage.

 

ACROSS BORDERS

 

Visit the HOT CASES section of the Federation of Defense and Corporate Counsel website for cases covering a broad range of legal issues from other jurisdictions:  www.thefederation.org.

 

05/16/02:         NYER v. WINTERTHUR INT'L

First Circuit

Plaintiff's Attorney Sanction for Frivolous "Unfair Trade Practices" Suit Against Insurer

Sanctions against an attorney for his attempt to bring an unfair trade practices claim against an insurer were proper, where the insurer’s settlement proposal represented an amount approximating the cost of defense, and was not an implicit acknowledgement of the insured’s liability.

 

05/16/02:         GIBSON v. AM. BANKERS INS. CO.,

Sixth Circuit (considering Kentucky law)

Plaintiffs Claims of Bad Faith Under Unfair Settlement Statute Preempted by National Flood Insurance Act

Where plaintiffs had notice of the need to sue in federal court, and no authority supported the filing of suit in state court, the statute of limitations was not tolled in a claim seeking recovery under a flood insurance policy; plaintiffs’ claims under the Kentucky Unfair Claims Settlement Statute were preempted by the National Flood Insurance Act.

 

05/16/02:         CENTURY INDEM. CO. V. STOLTZ

Fourth Circuit (applying South Carolina law)

No Coverage for Cost of Repair to Substrate of Home Because of Sub’s Poor Workmanship

A general contractor’s claim for the cost of repair to the substrate and framing of a house damaged by a subcontractor’s improper installation of a stucco exterior is precluded by a faulty workmanship exclusion under South Carolina law, and no coverage will be found.

 

05/15/02:         KITMIRIDES V. MIDDLESEX MUTUAL ASSURANCE CO.

Connecticut Supreme Court

Individual Listed as Driver but Not Within Definition of Insured Under Auto Policy is Not Entitled to Underinsured Motorist Protection

In an issue of first impression under Connecticut law, a person who was a listed driver on the declarations page of an automobile insurance policy, but listed nowhere else as an insured, was not entitled to underinsured motorist coverage. As such, a pedestrian struck by an underinsured motorist was not entitled to underinsured motorist benefits under an automobile insurance policy issued to the pedestrian’s father-in-law. Finding the policy unambiguous, the court noted that the policy listed the pedestrian as a “driver” of a covered vehicle on the declarations page, but did not list the pedestrian as a named insured.

 

05/15/02:         FARM FAMILY MUT. INS. CO. v. WHELPLEY

Massachusetts Appeals Court

An ATV by Any Other Use is Still A Recreational Vehicle

For purposes of homeowners coverage, All Terrain Vehicle purchased for farm is still a recreational vehicle. The defendant argued that the ATV in question was not a recreational motor vehicle because he purchased it for farm use and, in any event, the policy definition of a recreational motor vehicle was ambiguous and must be construed against the plaintiff that drafted the policy. A “recreational motor vehicle” was defined in the policy as “any motorized vehicle designed for recreation, principally used off public roads, and whether licensed for road use or not.” Where the terms of an exclusionary clause are plain and free from ambiguity, the words of the policy must be construed in their “usual and ordinary sense” and not strictly against the insurer. In common usage, an ATV is defined as “[a] small, open motor vehicle having one seat and three or more wheels fitted with large tires. It is designed chiefly for recreational use over roadless, rugged terrain.” American Heritage Dictionary of the English Language 50 (3d ed. 1992). Aside from the fact that the ATV was being used for recreational purposes at the time of the accident and regardless of the use to which the defendant put his ATV, the ATV comports with the policy’s definition of a “recreational motor vehicle” as a motorized vehicle designed for recreational use, principally off public roads.

 

05/14/02:         UREN v. DAKOTA DUST-TEX, INC.

North Dakota Supreme Court

Implicitly, Tenant is Co-Insured Under Landlord's Fire Policy

Absent an express agreement to the contrary, a tenant is an implied co-insured under the landlord’s property insurance policy, and the insurer may not seek subrogation against the tenant for damages caused by the tenant’s negligence. Ordinary negligence is not a “willful act or misconduct” under a lease provision requiring the tenant to continue paying rent if the building is destroyed by the “willful act or misconduct” of the tenant. A landlord who receives insurance payments exceeding the actual value of the damages allegedly caused by the tenant’s negligence cannot recover against the tenant for “uninsured losses.” Attorney travel expenses to attend a pretrial product inspection are not recoverable as costs or disbursements.

 

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REPORTED DECISIONS

 

187 CONCOURSE ASSOCIATES v. RELIANCE NATIONAL INDEMNITY CO.

 

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about March 2, 2001, which, in an action on a policy of property insurance, granted defendant's motion to renew a prior motion for sanctions pursuant to 22 NYCRR part 130, and, upon renewal, directed plaintiff's attorney to pay defendant's attorney $10,000, unanimously modified, on the facts, to direct plaintiff's attorney to pay defendant's attorney $1,798.50 and $8,000 to the Lawyers' Fund for Client Protection, and otherwise affirmed. Pursuant to 22 NYCRR 130-1.3, the Clerk of the Supreme Court, New York County, is directed to enter judgment accordingly.

 

Plaintiff commenced three actions on the same insurance policy for the same loss to a building located in Bronx County. The first action was commenced in New York County and dismissed on September 2, 1999 because of plaintiff's failure to comply with its disclosure obligations. The second action was commenced on September 27, 1999, also in New York County, and the third action was commenced in Bronx County on December 14, 1999.

 

On December 15, 1999, the parties appeared in court on defendant's motion in the second action to compel disclosure of the insurance policy. The court granted the motion, after which defendant's attorney reminded the court that plaintiff's attorney had earlier in the conference indicated that plaintiff might re-commence the action in the Bronx. Defendant's attorney indicated that defendant had a strong preference for New York County and would take steps to keep the action in New York County in the event of plaintiff's commencing a third action in the Bronx. The court said: "Let him [plaintiff's attorney] do whatever he wants. If he does that [files in the Bronx] and I get the case back and dismiss it again, I will include in the sanctions all the expenses that you incurred in the shenanigans that go on here." [*2]Plaintiff's attorney disagreed, and the conference ended, without plaintiff's attorney advising the court or his adversary that plaintiff had commenced a third action in the Bronx the day before.

 

After being served with process in the third action (commenced in Bronx County), defendant moved to dismiss that action, the pending (second) New York County action, and requested sanctions. On February 10, 2000, the court dismissed the Bronx County action on the ground of the pendency of the New York County action; dismissed the New York County action on the ground of res judicata, rejecting plaintiff's argument that the action was saved by CPLR 205(a); and did not address the request for sanctions. Defendant's subsequent motion to "renew" its request for sanctions was granted, resulting in the order on appeal.

 

The court properly entertained defendant's second motion for sanctions, which was timely made. On the merits, we reject the motion court's finding that plaintiff's claim is "apparently meritless," and, in view of certain particulars concerning the dismissal of the first action, also reject any implication that the commencement of the second action was frivolous.

 

However, we find that plaintiff's attorney's conduct with respect to the third action is sanctionable. The filing of the third action should have been revealed to defendant's attorney as soon as plaintiff's counsel realized he should have commenced the third action in New York County instead of the Bronx, and certainly at the December 15 conference when the subject came up. Accordingly, we find plaintiff's counsel's inherently inconsistent explanations coupled with his failure to advise both the court and defendant's attorney that a third action in fact had already been filed in the Bronx clearly constituted frivolous conduct that delayed and prolonged the litigation (see, 22 NYCRR 130-1.1[c][2]). We therefore sanction plaintiff's attorney in the amount of defendant's attorney's fee attributable to the motion to dismiss the Bronx County action ($1,798.50) and in the additional amount of $8,000 to be paid to the Lawyers' Fund for Client Protection in accordance with the Rules of the [*3]Chief Administrator of the Courts (22 NYCRR 130-1.3), and modify accordingly.

 

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

ZURICH-AMERICAN INS. CO. v. AUDIOVOX CORP.

 

Orders and judgments (one paper each), Supreme Court, New York County (Helen Freedman, J.), entered January 8, 9 and 11, 2002, upon the parties' respective motions for summary judgment, declaring in favor of insurers that they have no duty to defend defendant insured in the underlying proposed class actions, unanimously affirmed, with separate bills of costs. Appeal from order, same court and Justice, entered December 5, 2001, unanimously dismissed, without costs, as subsumed within the appeals from the orders and judgments.

 

The motion court correctly held that the underlying proposed class actions for which the insured, a distributor of cell phones, seeks a defense under its policies covering damages "because of" or "for" "bodily injury" are not claims within the coverage of the policies. This is because such actions seek only economic damages measured by the cost of headphones that allegedly would block the allegedly dangerous radiation emitted [*2]by cell phones, and, while alleging the risk of physical harm, specifically disclaim seeking recovery for anything but the cost of the headphones. In view of the foregoing, it is unnecessary to address whether any of the policy exclusions apply. We have considered appellant's other contentions and find them unavailing.

 

M-2038 - Zurich-American v Audiovox, et al.

 

Motion seeking leave to file Amicus Curiae brief granted.

 

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

FORD MOTOR CREDIT CO. v. ATLANTIC MUT. INS. CO.

 

Order, Supreme Court, New York County (Joan Madden, J.), entered on or about October 29, 2001, which granted defendant's motion to reject the report of the Special Referee in this matter and denied plaintiff-appellant's cross motion to confirm such report, and, upon the grant of reargument and renewal, adhered to the prior order of the same court (Salvador Collazzo, J.), entered May 9, 1997, granting defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

 

While it is true that one of the binders issued by the insurance broker indicated that plaintiff Ford Motor Credit Company (FMCC) was to be named as an additional insured in the policy covering the automobile leased by plaintiff Hall, the policy subsequently issued by defendant did not name FMCC as an additional insured and "where the provisions of an insurance policy are clear, the contract must be enforced as written" (Moshiko, Inc. v Seiger & Smith, Inc., 137 AD2d 170, 175, affd in part and appeal dismissed in part 72 NY2d 945; see also, Charnowitz v GEICO, 177 AD2d 320, 321). Although FMCC seeks to reform the policy to include itself as an additional insured, it has not come forward with the necessary "evidence of a very high order" "to overcome the heavy presumption that [the] deliberately prepared and executed written instrument manifested the true intention of the parties" (George Backer Mgt. Corp. v Acme Quilting Co., Inc., 46 NY2d 211, 219; see also, Chimart Assocs. v Paul, 66 NY2d 570, 574). While there was evidence before the Special Referee that the vehicle lessee, Hall, told the broker that FMCC was to be named as an additional insured, there was no [*2]evidence that the broker communicated that direction to defendant and thus no basis for the conclusion, necessary to render FMCC's claim for reformation viable, that defendant, although intending to name FMCC as an additional insured, simply neglected to do so (see, id.).

 

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

BELT PAINTING CORP. v. TIG INS. CO.

 

PRUDENTI, P.J.

 

Whether the terms of the absolute pollution exclusion contained in certain contracts of insurance, including the one now under review in this case, should be applied literally so as to exclude coverage even in those cases where the "environment," as that term is commonly understood, is unaffected by anything which could realistically be defined as "pollution," is a question which has given rise to extensive litigation. Those courts which have considered this issue have arrived at contrasting conclusions. On this appeal, in accordance with our reading of the decision of the Court of Appeals in Westview Assocs. v Guaranty Nat. Ins. Co. (95 NY2d 334), we hold that the absolute pollution exclusion contained in the policy under review does not apply so as to exclude coverage in the case of a claimant allegedly injured as the result of the temporary indoor dissemination of paint or paint solvent fumes.

 

The injured plaintiff in the underlying personal injury action, Joseph Cinquemani, alleges that Belt Painting Corp. (hereinafter Belt), the plaintiff in the present action, is liable to him, and to his wife and co-plaintiff Maria Cinquemani, because of the injuries which he sustained as a result of his inhalation of "noxious and toxic fumes." On April 26, 1997, Cinquemani allegedly inhaled paint or paint solvent fumes which were produced by Belt's workers during the course of its performance of a subcontract to strip existing paint and repaint certain office space located at Financial Square, 33 Old Slip, New York, N.Y., where Mr. Cinquemani worked.

 

Belt was covered by a commercial general liability policy issued by the defendant TIG Insurance Company (hereinafter TIG) for the period from June 1, 1996, to July 1, 1997, and it demanded that TIG defend and indemnify it in connection with the Cinquemani action. By letter dated November 9, 1999, TIG denied coverage on the basis of the "total pollution exclusion endorsement" contained in the policy. The present action for declaratory and injunctive relief was commenced on or about June 16, 2000.

 

By notice of motion dated August 17, 2000, TIG sought summary judgment dismissing Belt's complaint, arguing that it was not obligated to defend or indemnify Belt in connection with the underlying action based on the terms of the "total pollution exclusion endorsement" contained in the relevant policy. TIG relied on various cases, including A-One Oil v Massachussetts Bay Ins. Co. (250 AD2d 633), White v Freedman (227 AD2d 470), and Demakos v Travelers Ins. Co. (205 AD2d 731). Belt moved for summary judgment in its favor, arguing that the pollution exclusion does not apply. Belt relied on Continental Casualty Co. v Rapid-American Corporation (80 NY2d 640) and Karroll v Atomergic Chemetals Corp. (194 AD2d 715), among other cases, and argued that the cases relied upon by TIG, including those noted above, were distinguishable.

 

The Supreme Court granted TIG's motion, and denied Belt's cross motion. In its order, the Supreme Court stated, "While it may be true that the endorsement applies only to environmental or [*3]industrial pollution, it has been held that indoor air contamination, such as in the instant case, can constitute environmental pollution", citing A-One Oil v Massachussetts Bay Ins. Co. (250 AD2d 633, supra); American Heritage Realty Partnership v La Voy (209 AD2d 749); Demakos v Travelers Ins. Co. (205 AD2d 731, supra). Although the cases relied upon by the Supreme Court do support the proposition for which they are cited, we believe that subsequent case law, including, most importantly, the decision of the Court of Appeals in Westview Assocs. v Guaranty Nat. Ins. Co. (95 NY2d 334, supra), point to a different result. We therefore reverse.

 

Exclusionary provisions in insurance contracts are, in general, to be "accorded a strict and narrow construction" (Seaboard Surety Co. v Gillette Co., 64 NY2d 304, 311, citing Taylor v United States Cas. Co., 269 NY 360, 363; Griffey v New York Cent. Ins. Co., 100 NY 417, 421; Rann v Home Ins. Co., 59 NY 387, 389; see Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293, 298-299; Gaetan v Fireman's Ins. Co. of Newark, 264 AD2d 806). In Incorporated Vil. of Cedarhurst v Hanover Ins. Co. (89 NY2d 293, 298-299, supra), the Court of Appeals stated that "pollution exclusions do not apply when the complaint does not allege that the discharge complained of actually results in pollution" (citing Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 74). In this case, although the Cinquemani complaint alleges that personal injuries resulted from the emission of toxic fumes in combination with other factors such as inadequate ventilation, it does not allege that Belt's activities resulted in anything which would ordinarily be described as "pollution."

 

The pollution exclusion under review in this case is the type of exclusion which, in numerous cases which have arisen in various jurisdictions, has been described as an "absolute," or "total" pollution exclusion, as opposed to a "qualified" exclusion, that is, one containing an exception for "sudden and accidental" discharges (see e.g. Northville Ind. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621; see also American Heritage Realty Partnership v LaVoy, 209 AD2d 749, supra; Roofers' Joint Training, Apprentice, & Educ. Comm. of Western New York v General Accident Ins. Co. of America, 275 AD2d 90; Bechtel Petroleum Operations v Continental Insurance Company, 96 Cal App 4th 571). It excludes coverage in cases of bodily injury "which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants at any time." The term "pollutant" is then defined to include "any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste."

 

In Westview Assocs. v Guaranty Nat. Ins. Co. (95 NY2d 334, supra), the Court of Appeals reviewed the similarly-worded provision of an umbrella policy, in which the  term "pollutants" was defined as "'smoke, vapors, soot, fumes, acids, sound, alkalies, chemicals, liquids, solids, gases, thermal "pollutants," and all other irritants and "Contaminants"'." (id. at 340). The Court of Appeals held that this exclusion, which by its literal terms would seem to apply to injuries resulting from exposure to "all irritants" and "all contaminants," did not apply to exclude coverage in a case where the infant plaintiff in the underlying action claimed to have been injured as the result of the ingestion of lead paint, an injury which was incurred indoors. This holding is consistent with prior decisions of this court [*4]holding that the pollution exclusions under review did not apply to eliminate coverage in cases involving ingestion of lead paint (see e.g. Cepeda v Varveris, 234 AD2d 497; GA Ins. Co. of N.Y. v Naimberg Realty Assocs., 233 AD2d 363).

 

The Westview decision represents a signal that New York will not adhere to a completely literal approach in connection with the application of absolute pollution exclusions, an approach which has been persuasively criticized in several other jurisdictions (see e.g. American States Ins. Co. v Kiger, 662 NE2d 945, 948-949 [Ind] [applied literally, exclusion would bar coverage in case of injury caused by slip and fall on grease spill]), and which previously has been rejected by this court as well, in favor of the view that such exclusions should apply only in cases of "environmental pollution" (see Karroll v Atomergic Chemetals Corp., 194 AD2d 715, supra; citing Continental Cas. Co. v Rapid-Am. Corp., 80 NY2d 640, supra; see also Stoney Run Co. v Prudential LMI Ins. Co., 47 F3d 34 [2d Cir [New York law]; Republic Franklin Ins. Co. v L & J Realty Corporation, 280 AD2d 351 [1st Dept]; Cepeda v Varveris, 234 AD2d 497, supra; GA Ins. Co. of New York v Naimberg Realty Assocs., 233 AD2d 363; Miano v Hehn, 206 AD2d 957 [4th Dept]).

 

In Roofers' Joint Training, Apprentice, & Educ. Comm. of Western New York v General Accident Ins. Co. of America (275 AD2d 90, supra), the Appellate Division, Fourth Department also rejected a literal construction of an absolute pollution exclusion which would have led to the denial of coverage in a case factually similar to the case now under review. In Roofers' Joint Training (supra), the Fourth Department held that an exclusion which was, in relevant part, identical to the one now under review, did not apply in the case of a person claiming to have been injured as a result of the inhalation of toxic fumes which had been released when a roofing membrane was applied with a hot air gun during a classroom demonstration at the insured's premises. Acknowledging that various state and federal courts had "split on this issue," the Fourth Department held that the better view was that this type of exclusion "applies only to environmental pollution, and not to all contact with substances that can be classified as pollutants" (id. at 93, quoting Stoney Run Co. v Prudential LMI Ins. Co., 47 F3d 34 [2d Cir], supra; citing Nautilus Ins. Co. v Jabar, 188 F3d 27 [1st Cir][Maine law]; Meridian Mutual Ins. Co. v Kellman, 197 F3d 1178 [6th Cir][Michigan law]; see also Bituminous Casualty Corp. v Advanced Adhesive Technology, 73 F3d 335 [11th Cir][Georgia law]; Minerva Enterprises v Bituminous Casualty Corp., 851 SW2d 403 [Ark]).

 

To the extent that other decisions of this court, including those relied upon by the Supreme Court in this case, support a contrary result (see A-One Oil v Massachussetts Bay Ins. Co., 250 AD2d 633, supra; White v Freedman, 227 AD2d 470, supra; Demakos v Travelers Ins. Co., 205 AD2d 731, supra), we believe that they are no longer valid in light of the Court of Appeals decision in Westview (supra). We are persuaded that the common-sense construction of the terms of the absolute pollution exclusion reflected in the Westview case (supra) and in Roofers' Joint Training, Apprentice, & Educ. Comm. of Western New York v General Accident Ins. Co. of America (275 AD2d 90, supra) is preferable to the literal approach reflected in the earlier cases.

 

Of course, the exclusion under review in this case, as well as the qualified pollution exclusion (those subject to the "sudden and accidental" exception) still may be properly applied in those cases where the damages alleged are truly environmental in nature, or where the underlying complaint alleges damages resulting from what can accurately be described as the pollution of the environment (see e.g. Town of Harrison v National Union Fire Ins. Co. of Pittsburgh, Pa, 89 NY2d 308 [claim based on property damage due to dumping of waste on claimants' property]; Incorporated Village of Cedarhurst v Hanover Ins. Co., 89 NY2d 293, supra [claims for property damage and personal injuries asserted by village residents based on floods caused by discharges from village sewer system]; see also Schenectady International v Employers Ins. of Wausau, 245 AD2d 754; Cannon Construction Co. v Liberty Mutual Ins. Co., 227 AD2d 364 [insured sought indemnification for cleanup costs incurred after liquid asphalt applied to nearby roads dispersed into Manhasset Creek]).

 

For the foregoing reasons, the order and judgment (one paper) appealed from is reversed, the defendant's motion for summary judgment is denied, the plaintiff's cross motion for summary judgment is granted, and it is declared that the defendant is obligated to defend and indemnify the plaintiff in connection with the underlying action.

 

O'BRIEN, FRIEDMANN and McGINITY, JJ., concur.

 

ORDERED that the order and judgment is reversed, on the law, with costs, the defendant's motion for summary judgment is denied, and the plaintiff's cross motion for summary judgment is granted; and it is further,

 

ADJUDGED AND DECLARED that the defendant is obligated to defend and indemnify the plaintiff in connection with the underlying personal injury action.

 

CITY OF NEW YORK v. CERTAIN UNDERWRITERS AT LLOYDS OF LONDON

 

In an action for a judgment declaring the rights of the parties concerning a comprehensive general liability insurance policy, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated November 28, 2000, which denied their motion for partial summary judgment on their first and second causes of action and granted the cross motion of the defendant Certain Underwriters at Lloyd's of London, England, Who Subscribe to Policy No. RA033320L, for summary judgment dismissing the complaint insofar as asserted against it.

 

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

 

The appellants City of New York (hereinafter the City) and Brooklyn Navy Yard Development Corporation (hereinafter Brooklyn Navy Yard) are defendants in an underlying action. Where two or more insureds are defendants in the same action, notice of the lawsuit provided by one insured will be deemed notice on behalf of both insureds only where the two parties are united in interest or where there is no adversity between them (see National Union Fire Ins. Co. of Pittsburgh, Pa. v State Ins. Fund, 266 AD2d 518; Delco Steel Fabricators v American Home Assur. Co., 40 AD2d 647, affd 31 NY2d 1014). Here, the Brooklyn Navy Yard provided its insurance carrier, the defendant Certain Underwriters at Lloyd's of London, England, Who Subscribe to Policy No. RA033320L (hereinafter Lloyd's) with notice of the underlying lawsuit, but the City, an additional insured under the policy, did not provide independent notice to Lloyd's. Contrary to Lloyd's contention, the Supreme Court erred in granting the motion for summary judgment dismissing the complaint insofar as asserted against it since there are issues of fact as to whether the plaintiffs have adverse interests.

 

ALTMAN, J.P., FLORIO, H. MILLER and COZIER, JJ., concur.

 

SCHLESINGER v. NATIONWIDE MUT. INS. CO.

 

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant appeals from an order of the Supreme Court, Kings County (Gigante, J.), dated March 27, 2001, [*2]which denied its motion for summary judgment dismissing the complaint.

 

ORDERED that the order is affirmed, with costs.

 

On March 15, 1998, the plaintiff Otto Schlesinger was involved in an automobile accident in Brooklyn with a van owned by a New Jersey resident, Carolyn Joyner. The police accident report included insurance code "003" for the Joyner van and an insurance policy number. On January 8, 1999, Schlesinger commenced a personal injury action against Joyner and the driver of the van. The process server was unable to locate either party at the address provided on the police accident report.

 

By notice dated January 14, 1999, Schlesinger made a claim for uninsured motorist benefits under his insurance policy with Nationwide Mutual Insurance Company (hereinafter Nationwide). Nationwide disclaimed coverage on the ground that Schlesinger failed to give notice of his claim "[a]s soon as practicable." A subsequent investigation by Schlesinger's attorney revealed that the Joyner van was uninsured at the time of the accident. Schlesinger and his wife the commenced this action, seeking, inter alia, to recover damages for breach of the insurance contract. Nationwide moved to dismiss the complaint on the ground that Schlesinger failed to provide timely notice of his claim as required under the terms of the policy.

 

Schlesinger was required to provide notice of his claim for uninsured motorist benefits as soon as practicable after he knew or should have known that the Joyner van was uninsured (see Matter of Continental Ins. Co. v Boyar, 284 AD2d 332; Matter of Eagle Ins. Co. v Bernardine, 266 AD2d 543; see also Matter of Metropolitan Prop. and Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495). Thus, he was required to demonstrate that he acted with due diligence in ascertaining the insurance status of the Joyner van or to provide a reasonable excuse for his delay in ascertaining its insurance status (see Matter of Eagle Ins. Co. v Bernardine, supra at 544; Matter of Travelers Prop. Cas. Corp. v Lee, 283 AD2d 583).

 

The Supreme Court properly determined that Schlesinger provided Nationwide with notice of his claim as soon as practicable. Schlesinger was entitled to rely on the insurance code and policy number provided for the Joyner van in the police report as presumptive proof that the vehicle was insured (cf. Matter of Nationwide Ins. Co. v Sillman, 266 AD2d 551, 552; Matter of Centennial Ins. Co. v Capehart, 220 AD2d 499). Although Nationwide contends that Schlesinger should have contacted New Jersey Motor Vehicle Services at an earlier date to verify Joyner's insurance coverage, the vehicle registration documents which were provided by that agency in April 1999 in response to a request from Schlesinger's attorney indicated that the Joyner van was insured when registered in March 1997. The record establishes that Schlesinger promptly notified Nationwide of his claim upon learning that Joyner could not be located and that the Joyner van might not have insurance coverage. Accordingly, the Supreme Court properly denied [*3]Nationwide's motion for summary judgment.

 

O'BRIEN, J.P., FRIEDMANN, SCHMIDT and TOWNES, JJ., concur.

 

KEENA v. TRAPPEN

 

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered February 7, 2001, which, in effect, granted the defendant's motion for summary judgment dismissing the complaint on the ground that the [*2]plaintiff Kathleen Keena did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

 

ORDERED that the order is affirmed, with costs.

 

The plaintiffs failed to rebut the defendant's prima facie showing that the plaintiff Kathleen Keena did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The affirmation of the injured plaintiff's treating physician stated that he only diagnosed cervical and lumbar sprains, which do not rise to the level of serious injuries (see Gaddy v Eyler, 79 NY2d 955; Lebron v Camacho, 251 AD2d 295). Moreover, the treating physician's projections of permanent injury lacked probative value, since the affirmation is dated more than three years after the last examination of the plaintiff (see Tobiolo v Friedman, 283 AD2d 483). The affidavit of the injured plaintiff's chiropractor, prepared almost three years after the last examination of the injured plaintiff, was likewise insufficient to raise a triable issue of fact (see Bidetto v Williams, 276 AD2d 516).

 

Finally, the plaintiffs failed to establish that the injured plaintiff sustained an "medically determined injury" which prevented her from performing "substantially all" of her "usual and customary daily activities" for 90 or more days out of the first 180 days "immediately following" her accident (Insurance Law § 5102[d]). Her affidavit did not specify her "usual and customary daily activities" before the accident, or which of those activities she was unable to perform after the accident (see Yagliyan v Gun Shik Yang, 241 AD2d 518). She did not submit a physician's affidavit substantiating the existence of a "medically determined" injury producing the alleged impairment of her activities (see Insurance Law § 5102[d]; Ryan v Xuda, 243 AD2d 457).

 

SANTUCCI, J.P., GOLDSTEIN, LUCIANO, SCHMIDT and CRANE, JJ., concur.