Dear Coverage Pointers Subscribers:

 

As always, welcome to our newest subscribers, and we have several who are joining us for the first time.  You know you're in good company.

 

Congratulations and Happy Anniversary:

You may not have had the pleasure, yet, of meeting the newest member of our ever-growing coverage team, Jennifer Ehman. Jennifer is a 2009 graduate of the Buffalo Law School and just learned - this week - that she passed the New York State Bar Examination.  She'll be admitted to practice in early 2010 and we are simply delighted she is with us. She is loaded with scholarship and common sense, and is a delight to have around, the kind of qualities that we look for in our hires.

 

Thirty years ago this week, the members of the Hurwitz & Fine Class of '79 learned that WE passed the Bar Exam, so a special congratulations to my fellow classmates, Ann Evanko, Paul Suozzi, Larry Ross and Roger Ross.  The five of us have been together here for a long, long time!  My legal assistant, Donna Boice, started with us the day we learned of our success on the Bar Exam and for some reason, she has stuck with us all of this time.  Congrats to her as well!

 

This Week's Issue:

There are a few very interesting cases in this week's collection, including an "assault and battery exclusion" case, an "insurance procurement vs. additional insured" decision, and a number of very interesting No Fault decisions.  The most popular questions we receive are still revolving around the breadth of additional insured endorsements and we are doing a lot of training in that area.  Call us to schedule.  We are on our way to Indianapolis in December and if any of you are going to be in that community on Monday, December 14th, our host company has offered to make some room for you at the training table.  Let us know.

 

DRI - Insurance Coverage and Practice

Don't miss the DRI Insurance Coverage and Practice seminar in NYC on December 3rd and 4th.  Audrey and I will be there and we'd love to see you.  Information is available on the DRI website: www.dri.org.

 

Professor Seeley:

Many of you know that I have been serving as an Adjunct Professor of Insurance Law at the Buffalo Law School for over two decades, teaching between 50 - 80 second and third year law students.  This year, for the first time, Audrey Seeley has taken on the Property Insurance portion of the course, and is in the midst of teaching four of the classes.  Audrey's note to you:

 

I am feeling professorial this edition as my partner, Dan, asked me to teach the property insurance section of Insurance Law at the law school.  I have taught two classes and have two left in the section.  It has been a great experience and opportunity.  Many thanks to Dan.

 

I have two training announcements as well.  The first is the NBI seminar next Wednesday and Thursday on No-Fault.  If you have not signed up it is not too late.  You can walk in and attend the day of the seminar.  If you need more information please let me know.  The second is the DRI Insurance Coverage and Practice Symposium in NYC on December 3 and 4.  Dan and I plan on attending and it looks like a great program.  If you need any information on it please send me an email at [email protected]

 

Audrey

 

Friday the Thirteenth: 

It's Friday the 13th and you cannot expect Coverage Pointers to bypass commentary on the history of this day which some consider unlucky.

 

With credit to the Web Site: How Stuff Works, a little Friday the 13th History

Some trace the infamy of the number 13 back to ancient Norse culture. In Norse mythology, the beloved hero Balder was killed at a banquet by the mischievous god Loki, who crashed the party of twelve, bringing the group to 13. This story, as well as the story of the Last Supper, led to one of the most entrenched 13-related beliefs: You should never sit down to a meal in a group of 13.

Another significant piece of the legend is a particularly bad Friday the 13th that occurred in the middle ages. On a Friday the 13th in 1306, King Philip of France arrested the revered Knights Templar and began torturing them, marking the occasion as a day of evil.

Both Friday and the number 13 were once closely associated with capital punishment. In British tradition, Friday was the conventional day for public hangings, and there were supposedly 13 steps leading up to the noose.

But I don't buy any of it - in fact, a guy I know pretty well is starting his honeymoon on Friday the Thirteenth. 

One Hundred Years Ago Today:
The Great Cherry Coal Mine Disaster and the Birth of Workers Compensation in the United States

The Illinois census data for 2008, tell us that there were 488 people living in the Village of Cherry, Illinois, a town just a few miles northwest of LaSalle.  One hundred years ago today, November 13, 1909, the third deadliest coal mine accident in United States history took place in the village.  Known as the Great Cherry Coal Mine Disaster, it killed 247 coal miners and 12 rescuers. Another 234 were saved by the rescue team that descended into the shaft six times, but failed to return on the seventh trip. A blaze started inside a mine shaft between noon and 1:00 PM. A carload of hay bales had been set too near to a kerosene torch. Fed by the ventilation system, the flames spread to the mine timbers and asphyxiated half of the men and boys working inside. The disaster led to the creation of the US Bureau of Mines and the first workers compensation legislation in the United States.

The fire started when a young boy, 15-year old Matt Francesco and another man, pushed a car filled with hay down a track.  Unfortunately, it came to rest under an open torch, so placed because the electrical system was inoperative that day.

The Cherry mine was sealed 25 days after the disaster. The question of compensation for the lost lives of the miners and rescuers remained to be resolved. The laws governing worker's compensation and employer liability were not yet on the Illinois statute books, and the mine company had gone into bankruptcy. At length, it was agreed that the settlement of claims would be based on standards set in the Workmen's Compensation Act, which had recently passed in the British Parliament.

 

Impelled by the public outcry over the tragedy, in 1910 the Illinois legislature established stronger fire and safety regulations governing mines. A year later, the State adopted a liability act, which later developed into the Illinois Workers' Compensation Act.   

 

In this Week's Issue: 

KOHANE'S COVERAGE CORNER

Dan D. Kohane

[email protected]

  • "Assault and Battery" Exclusion Applicable to Deny Coverage to Premises Owner Sued for Negligence
  • While Indemnity Agreement May Not be Enforceable, Insurance Procurement Provision Must be Separately Considered
  • Excess Carrier's Attempt to Invalidate Disclaimer by Primary Carrier Falls Flat where Exclusion Relied upon was Clear
  • Statutory Bad Faith Claim Properly Pled - But Under Connecticut Law.  Choice of Law Standards Discussed
  • Coverage Established But We're Not Telling You Why
  • Carrier Hasn't Established Why There Was No Coverage, but We're Not Telling You Why
  • "Worthless," "Illusory," "Meaningless," "Inadequate" Liability Policy Provided to Construction Site Owner Is Nevertheless Enforceable When Exclusions to Coverage Are Clear

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras

[email protected]

  • Even Where a Herniation is Causally Related to An Accident, Other Contributing Factors May Support Summary Judgment
  • Once Again, Affirmation Based on Both Contemporaneous and Recent Examinations Defeats Summary Judgment
  • Defendants' Experts Must Address the Claims in the Bill of Particulars
  • Affirmed Report Cannot Rely on Unsworn Range-of-Motion Findings
  • Because the Plaintiff Did Not Allege Significant Limitation of Use in His Bill of Particulars, Injury under this Category Should Not Have Been Considered in Opposition to Defendants' Motion
  • Plaintiff's Testimony That Chiropractic Treatments Provide Temporary Relief Supports Jury's Decision to Not Award for Future Pain and Suffering
  • Examining Neurologist's Conclusion That Decreased Ranges-of-Motion Are "Voluntary" Must Be Substantiated 

AUDREY'S ANGLES ON NO-FAULT

Audrey Seeley

[email protected]

ARBITRATION

  • Medical Device Prescribed Four Year Post Accident Not Medically Necessary 

LITIGATION

  • 45 Day Rule Violated But Insurer Waived Defense for Failure to Have Statutorily Required Language in Denial.
  • Examining Neurologist's Conclusion that Decreased Ranges-of-Motion are "Voluntary" Must be Substantiated 

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper

[email protected]

Of Property

  • Agents Negligence NOT Imputed to the Title Insurance Carrier 

and Potpourri

  • Plaintiff Assumed the Risk of Injury by Standing Near "Slam Dancers"
  • Employer Creates a Question of Fact on Contractual Indemnity Provision by Arguing that its Breach of Other Contract Provisions Demonstrates that the Purported Document was not Made Part of the Original Contract
  • Owners' Uncontradicted Testimony Is Not Enough to Overcome the Presumption of Permissive Use under V&T § 388.  

FIJAL'S FEDERAL FOCUS

Katherine A. Fijal

[email protected]

  • Second Circuit Declines to Address Constitutional Challenges to Amendments to New York Workers' Compensation Law
  • When Is An Insured Legally Liable?

EARL'S PEARLS

Earl K. Cantwell

[email protected]

Neat Burglars are Thieves, Not Vandals

 

A special thanks to Earl Cantwell who, week in and week out, comes up with eclectic and interesting commentary on legal issues.  We really appreciate his ability to identify, summarize and neatly and efficiently bring these topics to you in his columns.

 

Watch out for those black cats and see if you can avoid walking under ladders.   Don't break any mirrors; avoid stepping on the cracks on the sidewalk and come back to us in two weeks for your next issue of Coverage Pointers.

 

Dan

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
New York
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Scott M. Duquin

Index to Special Columns

Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Fijal’s Federal Focus
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER

Dan D. Kohane
[email protected]

11/10/09         WSTC Corp., d/b/a Vibe v. National Specialty Insurance Co.
Appellate Division, Second Department
“Assault and Battery” Exclusion Applicable to Deny Coverage to Premises Owner Sued for Negligence

Nick Mello sued WSTC (Vibe) to recover damages he sustained while a patron at Vibe’s business.  National Specialty had denied coverage, claiming that Mello was injured as the result of an assault and that the assault and battery exclusion was applicable. Vibe claimed that the causes of action sounded in negligence and therefore, Vibe was entitled to a defense, since the duty to defend existed, even if the allegations were groundless, false or fraudulent.
The court held that the exclusions were applicable and without the assault, the negligence claim against the premises owner would not exist, citing Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347.
However, there was still an issue as to whether or not the assault and battery exclusion was part of the policy, as the parties disagreed on whether the policies were properly endorsed, so the matter was remanded for a determination on that issue.
11/10/09         Town of Hempstead v. East Coast Resource Group, LLC
Appellate Division, Second Department
While Indemnity Agreement May Not be Enforceable, Insurance Procurement Provision Must be Separately Considered
Alduino was killed when he was struck by a "pay loader" which an employee of the Town of Hempstead (hereinafter the Town) was operating. The pay loader was pushing landscaping waste into a collection area, to be loaded into tractor trailers supplied and operated by the East Coast Resource Group, LLC (East Coast), pursuant to a waste hauling agreement with the Town (Agreement).
A wrongful death action was commenced against the Town and the Town cross-claimed against East Coast for breach of a provision to secure an insurance policy in the Town’s own name, as an additional insured under East Coast’s policy.  The lower court determined that there were issues of fact as to whether the Town’s alleged negligence arose from activities contemplated under the Agreement.  A jury determined that the accident did not arise out of an activity contemplated under the Agreement.
The Second Department held that despite the jury’s finding (that the liability did not arise out of contemplated activities) thus negating the enforceability of an indemnity agreement, the insurance procurement clause was still valid.  A contractor may properly obtain insurance to insure an owner against its own acts of negligence, in contrast to an indemnification provision, which insures an owner against the imposition of vicarious liability based on another party's negligence. Having failed to secure the policy, East Coast breached its contract with the Town. The insurance procurement provision did not limit East Coast's obligation to procure insurance for the Town to claims "which might arise in connection with th[e] Agreement."
Editor’s Note:  A reminder that insurance policies and indemnity agreements must be separately considered.
The court did not address the damages that would be assessed for failure to procure the coverage.  Under current case law, if the Town had other insurance, the recovery against East Coast for failure to procure would be limited to premium differential.  If the Town was self-insured or uninsured, damages could equal defense costs and indemnity for the entire judgment.

 

11/12/09         American Guarantee & Liability Ins. Co.  v. State National Ins. Co.
Appellate Division, First Department
Excess Carrier’s Attempt to Invalidate Disclaimer by Primary Carrier Falls Flat where Exclusion Relied upon was Clear

American, an excess carrier, sought a declaration that a disclaimer of coverage by the primary carrier was in error and that the primary policy’s exclusion was ambiguous and inapplicable to the loss.  Apparently, the excess carrier advanced funds to settle the case and sought reimbursement from the primary carrier. The court held that the disclaimer by the primary carrier was appropriate, that the exclusion upon which it relied was unambiguous and applicable and thus applicable. The court also properly found that the protections of Insurance Law § 3420[d] were inapplicable to one insurer's claim for reimbursement from another insurer.
Editor’s Note:          Attaboy Max.

11/5/09           Liberty Surplus Ins. Corp. v. National Union Fire Ins. Co.
Appellate Division, First Department
Statutory Bad Faith Claim Properly Pled – But Under
Connecticut Law.  Choice of Law Standards Discussed
A contract of liability insurance is governed by "the local law of the state which the parties understood was to be the principal location of the insured risk."  If the covered risks are spread over a number of states, courts will generally locate the risk in one state, the state in a corporate insured had its principal place of business.  Here, the insured’s principal place of business was Connecticut, also the place where the underlying litigation was placed and where the accident took place.  Connecticut law governed the dispute.  Under Connecticut law, statutory bad faith claim was properly alleged.

11/4/09           Parsippany Construction Company, Inc. v. CNA Insurance Company
Appellate Division, Second Department
Coverage Established But We’re Not Telling You Why
The plaintiff established that it was entitled to additional insured protection and the insurer failed to rebut the presumption.  Unfortunately, the decision does not tell us what proof was submitted by either side.  The carrier wished to rely on policy exclusions but it failed to disclaim timely so it was waived it right to rely on those exclusions under Insurance Law § 3420(d). 
Editor’s Note:  It would have been more instructive had the Court informed us as to the proof submitted to establish coverage, and in the following decision, was provided just as little instructive material when it ruled against another carrier seeking a declaration that it did not provide coverage:

11/4/09           Herrnsdorf v. Bernard Janowitz Construction Corporation
Appellate Division, Second Department
Carrier Hasn’t Established Why There Was No Coverage, but We’re Not Telling You Why

Utica First failed to conclusively demonstrate that Janowitz was not an additional insured to the insurance policy. Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211(a)(1) because they do not constitute documentary evidence.

11/4/09           720-730 Fort Washington Avenue Owners Corp. v. Utica First Ins. Co.
Supreme Court, Bronx County
“Worthless,” “Illusory,” “Meaningless,” “Inadequate” Liability Policy Provided to Construction Site Owner Is Nevertheless Enforceable When Exclusions to Coverage Are Clear
We rarely report on trial level opinions but this one was too interesting to overlook. 

Castellon, a construction worker, was hurt when a concrete block fell upon him.  He sued the owner of the property claiming that it was absolutely liable to him under Section 240(1) of the Labor Law, for failing to provide him with proper overhead protection.

The owner, Fort Washington, sought coverage under a policy of general liability insurance provided through Utica First.  The Utica First policy was provided by the roofing subcontractor, Castellon’s employer, because of a contractual obligation to provide coverage.

The problem was that there were three exclusions Utica relied upon to deny coverage when it was sought by For Washington: “employee” exclusion, a “roofing exclusion” and one that denied coverage for liability assumed under contract.  Fort Washington acknowledged that the exclusions would eradicate coverage but argued that the policy was “illusory” and “worthless” and it was against public policy to issue an insuring agreement for an owner of a construction site that by exclusion denies coverage for just the risk for which the coverage was to be purchased:  Labor Law violations.

The Supreme Court (NY’s trial level court) agreed that the policy was “worthless,” “inadequate,” and :”illusory” and suggested that the coverage was “misleading” and “meaningless” but was unable to find a public policy that would preclude those exclusions from being enforced.  It rules in favor of Utica and relieved it from any duty to defend.  “Caveat Emptor,” the court cried.  “Let the buyer beware”

 

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT

Margo M. Lagueras
[email protected]

11/5/09           Dean v. Brown
Appellate Division, Third Department
Even Where A Herniation Is Causally Related to An Accident, Other Contributing Factors May Support Summary Judgment
The Court gives a good review of the threshold requirements for serious injury under the permanent consequential limitation and significant limitation of use categories and reiterates that summary judgment may be appropriate if contributing factors, such as gap in treatment, intervening medical problems or preexisting conditions, interrupt the chain of causation. 

Here the plaintiff was a rear-seat passenger in a roll-over accident in 2003.  An MRI revealed a herniated disc at L5-S1 and her chiropractor, who treated her for approximately one year, stated in his 2008 affidavit that the injury was causally related to the accident.  During the 2008 examination, he performed range-of-motion testing and documented limitations but he did not set forth any findings of limitations for the period from 2003 to 2004 during which he had treated her.  Because the plaintiff admitted that in 2006 she had again injured her back, her chiropractor’s findings in 2008 were questionable as, in 2004, and other medical providers had noted that her lumbosacral flexion was within normal limits.  He also opined that her disability was mild to moderate which also failed to meet the definition of serious injury under Pommells.

11/4/09           Peter v. Palencia
Appellate Division, Second Department
Once Again, Affirmation Based on Both Contemporaneous and Recent Examinations Defeats Summary Judgment
In this case, it is the plaintiff who wins a reversal by raising a triable issue of fact in response to the defendants’ prima facie showing.  He submitted an affirmation from his treating neurologist that revealed significant range-of-motion limitations of the lumbar spine which, in the neurologist’s opinion, amounted to a permanent consequential limitation and/or significant limitation of use of his back.  These conclusions were sufficient as they were based on both contemporaneous and recent examinations, and related the findings to the accident.

11/4/09           Menezes v. Khan
Appellate Division, Second Department
Defendants’ Experts Must Address the Claims in the Bill of Particulars
The plaintiff’s alleged he missed three months of work and claimed injury under the 90/180-day category in his bill of particulars.  However, the defendants’ neurologist and orthopedist, who did not examine the plaintiff until three years after the accident, did not relate their findings to that category.  In addition, the defendants’ radiologist only addressed the cervical and lumbar spines, but did not consider the bilateral shoulder and knee injuries, also alleged in the bill of particulars.  The result is that the defendants fail to meet their prima facie burden and the court finds no need to examine the sufficiency of the plaintiff’s opposing papers.

11/4/09           Giannini v. Cruz
Appellate Division, Second Department
Affirmed Report Cannot Rely on Unsworn Range-of-Motion Findings
On appeal, the trial court is reversed and the defendant’s motion is granted, not only because the affirmed reports and affirmation of the plaintiff’s treating physician failed to quantify or qualitatively assess the limitations in her cervical spine and left shoulder, but because, in reaching his conclusions, he relied on range-of-motion findings in the unsworn reports of other physicians.

10/29/09         Lee v. Laird
Appellate Division, Third Department
Because the Plaintiff Did Not Allege Significant Limitation of Use in His Bill of Particulars, Injury Under This Category Should Not Have Been Considered in Opposition to Defendants’ Motion
The facts here are that the plaintiff, a truck inspector with the DOT, was injured when a truck owned by the defendant collided with the truck in which he was recording the results of an inspection.  He asserted a permanent loss of use and a permanent consequential limitation of use of his lumbar spine and lower back in his bill of particulars.  The Appellate Court reversed the trial court holding that, because the plaintiff did not allege an injury under the significant limitation of use category, and he did not move to amend his bill of particulars to add it, any references to such category in his brief should have been disregarded and not considered in opposition to the defendants’ motion.

Note:  The plaintiff did raise a triable issue of fact under the permanent consequential limitation of use category by way of the affidavit of his treating chiropractor.  The decision provides a detailed review of the chiropractor’s averments.

10/29/09         Yamamoto v. Carled Cab Corp.
Appellate Division, First Department
Plaintiff’s Testimony That Chiropractic Treatments Provide Temporary Relief Supports Jury’s Decision to Not Award for Future Pain and Suffering
The jury awarded sums for past medical expenses, past pain and suffering, and future chiropractic services.  It did not, however, award anything for future pain and suffering under the reasoning that since the plaintiff had not altered her lifestyle and chiropractic treatment was affording her temporary relief, by funding future chiropractic care the plaintiff’s future pain would be alleviated.  The court found the jury’s decision to be supported by the evidence.

10/27/09         Chang Ai Chung v. Levy
Appellate Division, Second Department
Examining Neurologist’s Conclusion That Decreased Ranges-of-Motion Are “Voluntary” Must Be Substantiated
The Appellate Court found that the Supreme Court erred in determining that the defendants met their prima facie burden where the affirmed medical report of the defendants’ examining neurologist noted significant limitations in the plaintiff’s cervical spine range-of motion which he concluded were “voluntary,” but he failed to explain or substantiate with objective medical evidence the basis for his conclusion.  As is always the case, when the moving party fails to meet its burden, the sufficiency of the opposition papers is not even a consideration.

 

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

ARBITRATION

10/20/09         Elite Med. Supply of NY v. New York Cent. Mut. Fire Ins. Co.
Arbitrator Kent L. Benziger, Esq. (Erie County)
Medical Device Prescribed Four Year Post Accident Not Medically Necessary.
The assigned arbitrator held that the insurer’s denial of a cervical traction collar four years post accident was appropriate based upon an independent medical examination (“IME”).  The first IME was conducted by Anthony Magnano, D.C. in May 2004, and concluded that additional chiropractic care was warranted.  However, in an addendum he opined that an orthopedic lumbar support or other additional durable medical equipment was needed in relation to the accident. 

The second re-evaluation with Mr. Magnano occurred in August 2004, and interestingly during the objective testing the cervical spine range of motion was inconsistent upon repeat testing.  Other objective testing was also inconsistent because of the eligible injured person’s poor effort.  Mr. Magnano concluded that the eligible injured person “obtained maximum and full benefit from chiropractic management and that treatment may be discontinued without significantly changing his clinical state.”

Over four years later, the treating chiropractor prescribed a cervical traction collar.  A separate, undated letter of medical necessity was submitted indicating that the traction collar was needed at home.

The assigned arbitrator found Mr. Mangano’s IME reports persuasive as they both provided very extensive examinations.  The Applicant on the other hand failed to produce any extensive report and failed to provide a report that is contemporaneous with the prescription for the cervical collar.  Furthermore, the undated letter of medical necessity was not only undated but failed to provide information specific to the eligible injured person.  This called into question whether the letter of medical necessity was merely a generic form routinely filled out without thought to the specific patient.

 

LITIGATION

10/23/09         Delta Diag. Rad., P.C. a/a/o Frank Louigarde v. Interboro Ins. Co.
Appellate Term, Second Department
45 Day Rule Violated But Insurer Waived Defense for Failure to Have Statutorily Required Language in Denial.
The insurer’s motion for summary judgment on the ground that the plaintiff failed to timely submit its claim within 45 days from the date service was rendered was properly denied.  While the plaintiff violated the 45 day rule the insurer failed to advise the plaintiff, as statutorily required, in the denial that the violation would be excused if written reasonable justification was provided.

10/23/09         Radiology Today, P.C. v. GEICO Ins. Co.
Appellate Term, Second Department
Examining Neurologist’s Conclusion that Decreased Ranges-of-Motion are “Voluntary” Must be Substantiated
The insurer’s unopposed summary judgment motion on failure to appear for scheduled IME’s should have been granted.  The insurer met its burden in demonstrating violation of the policy conditions of the eligible injured person submitting to an independent medical examination.  The insurer established its burden through the affidavits and affirmations of the medical professionals who were to perform the IME together with a manager for the company that arranged for the IME as to standard office practice and procedure on generating and emailing IME notices.  

PEIPER ON PROPERTY (and POTPOURRI)

Steven E. Peiper
[email protected]
Of Property

11/04/09         Nechadim Corp. v CJP Abstract, LLC
Appellate Division, Second Department
Agents Negligence NOT Imputed to the Title Insurance Carrier

Plaintiff is a mortgage holder on two properties.  The first is located in Orange County, New York, and the second is located in Sullivan County, New York.  On the date of closing, plaintiff gave the titles to both properties to defendant CJP for the recording in the appropriate clerks’ offices.  At the same time, plaintiff also procured a title insurance policy from Commonwealth Title Insurance Company which covered only the mortgage in Orange County.

When the mortgage on the Sullivan County parcel was not recorded, plaintiff commenced the instant action.  In dismissing the claim against Commonwealth, the Second Department first noted that the title insurance policy at issue did not cover the Sullivan County parcel.  Further, the agency agreement between CJP and Commonwealth was for solicitation and production of insurance policies.  Therefore, the Second Department ruled that the negligence of the CJP could not be imputed to Commonwealth under agency principles.

and Potpourri

11/12/09         Schoneboom v B.B. King Blues Club & Grill
Appellate Division, First Department
Plaintiff Assumed the Risk of Injury by Standing Near “Slam Dancers”
Pretty straight forward facts on this one.  Where someone observes slam dancing, and then knowingly stands nearby, he or she cannot commence a personal injury action for injuries related to the slam dancers.  Well, DUH!

11/12/09         Auchampaugh v. Syracuse University
Appellate Division, Third Department
Employer Creates a Question of Fact on Contractual Indemnity Provision by Arguing that its Breach of Other Contract Provisions Demonstrates that the Purported Document was not Made Part of the Original Contract
This matter arises from injuries plaintiff sustained while in the course of his employment with International Chimney Corporation at a construction project owned by General Electric.   Subsequent to the main party action, General Electric commenced a third-party action against International Chimney Corporation which sought common law and contractual indemnification.

Because plaintiff did not sustain a grave injury, Workers’ Compensation Law § 11 barred any claim for common law indemnity.  The Third Department also found that GE had failed to establish a claim for contractual indemnity where it only produced a work order (containing no indemnity protection) which purported to incorporate additional terms of a secondary document.  The Court found a question of fact as to whether the indemnity provision was incorporated where International Chimney presented evidence that showed it did not comply with any of the terms of the purported incorporated document (thereby arguing that non-compliance established that International Chimney was unaware of the terms).  Further, the Court also noted GE’s inability to establish any evidence of past practice between the parties which conclusively established that the additional terms were incorporated.

11/04/09         Amex Assur. Co. v Kulka
Appellative Division, Second Department
Owners’ Uncontradicted Testimony Is Not Enough to Overcome the Presumption of Permissive Use under V&T § 388.
Amex commenced this action in subrogation after paying certain damages to its insureds who were injured in automobile collision with Devin Kulka.  At the time of the incident, Devin Kulka was driving his stepmother’s, Harriet’s, company car.  At that time, Harriet was out of town with Devin’s father, Jack Kulka.  After the accident, Amex commenced the instant action against all three Kulka’s, as well as Harriet’s employer, New York Institute of Technology (“NYIT”). 

NYIT and Harriet Kulka moved to dismiss the current action on the grounds that Devin Kulka was a non-permissive user at the time of the incident.  As such, under V&T Law § 388, even as owners they could not be held liable for the actions of non-permissive user Devin.  However, where neither NYIT, nor Harriet, could demonstrate any objective evidence that Devin was prohibited from driving the car, the strong presumption of permissive use under V&T Law § 388 was not overcome. 

However, Jack Kulka’s motion for summary judgment was granted.  Where he was not the owner, nor the employee of the owner, and did not extend permission to Devin, the vicarious liability provisions of Section 388 were held inapplicable. 

FIJAL’S FEDERAL FOCUS

Katherine A. Fijal
[email protected]

11/4/09           Liberty Mutual Insurance Co., et.al. v. Robert H. Hurlbut, et.al.
Second Circuit, Court of Appeals
Second Circuit Declines to Address Constitutional Challenges to Amendments to New York Workers’ Compensation Law
Liberty Mutual brought this action giving rise to the judgment seeking injunctive relief and declaratory relief from two amendments to the New York Workers’ Compensation Law [“WCL”] enacted in 2007.  Liberty Mutual challenges these amendments as violative of the Contracts, Takings, and Due Process and Equal Protections provisions of the United States Constitution.

The 2007 amendments to the WCL extended the requirement that deposits to the Aggregate Trust Fund [“ATF”] be made for scheduled awards to require that such deposits be made by private carriers in all Permanent Partial Disability [“PPD”] cases where long-term benefits are awarded, ending the distinction between scheduled and non-scheduled awards.  A carrier may contest a PPD claim and a deposit order in administrative and judicial review proceedings but has no further part to play with regard to indemnity payments after the deposit it made.

Another provision of the 2007 amendments related to the settlement of workers’ compensation claims, WCL §32 as revised provides a new timeframe for all settlements, requiring carriers to make settlement offers within two years of the indexing of claims by the Board or six months after classification of a permanent disability, whichever is later.  The amendments also conferred settlement authority upon the ATF for indemnity benefits.  The Authority becomes vested following a mandatory deposit.  Although the ATF may reach a settlement for less than the amount of the carrier’s deposit, the carrier is not entitled to a refund of the excess paid.  WCL §27.

Liberty Mutual argues that, because the amendments apply to awards of compensation, not policies of insurance, issued after July 1, 2007, they operate substantially to impair contracts of insurance in violation of the Contracts Clause.  Liberty Mutual alleges that the Contracts Clause violations arise from the imposition of the 3% fee that ATF collects under the amendments to administer a claim after a deposit is made; from the restriction of its former contractual right to pay compensation benefits on the basis of a multi-year schedule is restricted; and from the elimination of its right to settle claims after a deposit has been made.  Essentially, Liberty Mutual contends that because of the WCL amendments it will sustain enormous losses by reason of the lack of a premium adequate to cover liability under the new regime and therefore, operate as a substantial impairment of a contractual relationship.

Liberty Mutual also asserts that the amendments are violative of the Due Process Clause because WCL §32 as amended bars an insurer from appearing before the ATF and Workers Compensation Board [“WCB”] on settlements of claims asserted against its own insurance policies and also prohibits judicial review of WCB decisions approving such settlements.

Liberty Mutual also claims due process violations because it is denied judicial review of such settlements; because ATF keeps any deposits in excess of settlement; and because the ATF is administered by the New York State Insurance Fund, a competitor of Liberty Mutual and State’s largest carrier of workers’ compensation insurance.

Finally, Liberty Mutual challenges the 2007 amendments as violative of the Equal Protection Clause.  The basis for this challenge lies in the fact that self-insured employers are not required to make deposits to the ATF as private carriers.

Relying on the “abstention doctrine” announced in Younger v. Harris, 401 U.S. 37 (1971), the District Court determined that the circumstances of this case required it to abstain from the exercise of federal jurisdiction and dismiss the complaint for the reason.  The  Younger abstention doctrine states that abstention by a federal court mandates dismissal for lack of subject matter jurisdiction when (1) there is a pending state proceeding, (2) that implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his of her federal constitutional claims.

Notably, there was previous challenge to the constitutionality of amended WCL §27 was presented to the WCB by Wausau Insurance Company, an affiliate of Liberty Mutual, and there does not appear to be a ruling on the merits of the constitutional claim.

Applying the above referenced factors, the District Court determined that Liberty Mutual was involved in pending workers’ compensation proceedings involving disputes over PPD benefit claims in which the Board has ordered Liberty Mutual to make ATF deposits pursuant to the challenged amendments.  The District Court also determined that the state interest is evidenced by the detailed regulatory scheme put in place by the state to ensure workers a statewide system designed to provide relief for job-related injuries.  The District Court found that the preliminary injunction against enforcement of the challenged WCL amendments sought by plaintiffs would interfere with these regulatory mechanisms.

Finally, the District Court determined that judicial review of Liberty Mutual’s constitutional claims was available within the system established by the State, and that Liberty Mutual’s constitutional challenge to WCL §§27 and 32 can be mounted in State Court.

The Second Circuit agreed with the District Court that abstention was appropriate but relied on different precedent, Burford v. Sun Oil, 319 U.S. 315 (1943), which identified three factors to consider in connection with the determination of whether federal court review would work a disruption of a state’s purpose to establish a coherent public policy on a matter involving substantial concern to the public.  Those factors are:  (1) the degree of specificity of the state regulatory scheme; (2) the need to give one or another debatable construction to a state statute; and (3) whether the subject matter of the litigation is traditionally one of state concern.

In applying these factors, the Second Circuit held that a federal review of the WCL amendments as sought by Liberty Mutual would threaten to frustrate the purpose of the complex administrative system that New York has established.

11/5/09           General Star National Insurance Co. v. Universal Fabricators, Inc.
Second Circuit, Court of Appeals
When Is An Insured Legally Liable?
The district court granted summary judgment against the appellant, General Star National Insurance Co. [“General Star”], ruling that it was bound by the terms of an excess insurance policy it issued to contribute to the satisfaction of a state-court judgment of liability in a personal injury action against two entities [owner and general contractor] for whom its insured, Universal Fabricator’s Inc. [“UFI”] had been a contractor at the time of the injury.

The Second Circuit vacated and remanded the district court’s decision holding that the district court erred in deciding that the state court judgment established legal liability against General Star Insured, UFI.

The question presented on appeal is whether General Star, an excess insurer, is required to reimburse Mutual Marine, UFI’s primary insurer, for the amount that Mutual Marine paid above its policy limit to cover a portion of a state court personal injury judgment.

We provide the facts in detail because they are critical to understanding the court’s decision.  The City of New York owned the New York City Passengers Ship Terminal and that the Terminal was operated in part by the International Terminal Operating Co. [“ITO”].  The contract between ITO and UFI contained a rider which provided among other things, that UFI would (a) procure general liability insurance coverage in the amount of $5,000,000 per occurrence, with the insurance policy naming ITO and the City as additional insureds, and (b) “indemnify, defend and hold harmless” ITO and the city from and against all claims arising from any negligent act or omission by UFI that was related to the repair work.  As required, UFI purchased a primary general liability insurance policy from Mutual Marine in the amount of $1,000,000 and a secondary excess policy in the mount of $4,000,000 from General Star.

The General Star policy provided that General Star would pay for “ultimate net loss in excess of the retained limit because of bodily injury or property damage to which the policy applies.”  The policy also stated that:  “ultimate net loss means the total amount of damages for which the insured is legally liable.”  Ultimate net loss may be established by adjudication, arbitration or a compromise settlement to which General Star has previously agreed in writing. 

On February 16, 1999, UFI employee, Ronald Ernish, was seriously injured when he fell from a makeshift scaffold or ladder that collapsed under his weight.  Mr. Ernish later filed suit in the Supreme Court, New York County, against ITO and the City, alleging violations of the New York Labor Law.  ITO and the City then filed a third-party suit against UFI seeking indemnification. 

General Star was put on notice of the Ernish lawsuit and the third-party action against its insured, UFI.  At that point General Star concluded that it was unlikely that UFI would be exposed beyond Mutual Marine’s $1,000,000 policy limit so General Star decided to allow Mutual Marine to defend UFI in the third party action.  In correspondence to Mutual Marine, General Star, requested that it be advised immediately if future developments indicate the possibility of involvement of the excess policy. 

Prior to the trial in the Ernish action against the City and ITO, an agreement was entered into between Mutual Marine’s attorney, purportedly on behalf of UFI, and the City and ITO, settling the third-party action [“First Agreement”].  The First Agreement provided that ITO and the City would discontinue their third-party claim against UFI, and that ITO and the City would pay 25% and UFI would pay 75% of whatever amount was ultimately awarded to Mr. Ernish.  Importantly, General Star neither knew of nor participated in the First Agreement. Furthermore, it was undisputed that the First Agreement was entered into without UFI’s consent.

The State trial could ultimately direct a verdict in favor of Mr. Ernish on liability, leaving a jury to decide the amount of damages.  The jury returned a verdict of $3,000,000 against the City and ITO – an amount which surprised the parties and their insurers.  The judgment was later reduced by the Appellate Division to $2,175,000 plus interest.

The City and ITO were insured by National Union which initially paid the 25% of the judgment pursuant to the terms of the First Agreement.  Mutual Marine also paid its policy limits of $1,000,000; however $650,584.19 of UFI’s 75% share remained unpaid.  The parties looked to General Star to pay that amount under its excess policy, but General star declined, arguing that neither it nor UFI was bound by the First Agreement, and that it therefore had no liability for payment of any of UFI’s 75% share.

Because the judgment was entered against ITO and the City, their insurer, National Union, then paid the remainder of the judgment.  National Union thereupon commenced an action for declaratory judgment against UFI, Mutual Marine, and General Star, seeking reimbursement for the money it paid in excess of its 25% share under the First Agreement.

The case was later removed to federal court based on diversity of citizenship and Mutual Marine, UFI, and National Union, entered into two additional settlement agreements.  Pursuant to the “Second Agreement” Mutual Marine agreed to indemnify and defend UFI in National Union’s declaratory judgment action.  In exchange, UFI agreed that to the extent Mutual Marine pays any judgment or verdict against UFI in the National Union litigation, or pays settlement of any claim against UFI in the litigation or for any further liability under the First Agreement, Mutual Marine shall be subrogated to any and all rights of UFI, and/or be assigned such rights by UFI, including any right to pursue claims against General Star for amounts paid and for attorneys fees and costs.

Under the “Third Agreement” Mutual Marine paid National Union $700,000 for the amount National Union paid to satisfy UFI’s obligation to ITO and the City under the First Agreement, and National Union dismissed its suit against UFI and Mutual Marine, assigned the rights it asserted against General Star in the lawsuit to Mutual Marine.  Mutual marine maintained its suit against General Star for the excess over its $1,000,000 limit it paid to National Union. 

Mutual Marine first filed a motion for summary judgment against General Star on the limited issue of whether General Star was directly obligated under the First Agreement to pay the remained of UFI’s 75% share.  The court concluded that because General Star was not aware of, did not take part in, and was not a party to the First Agreement, it was not directly bound by its terms.  The opinion did not address whether General Star was obligated under the terms of its policy to pay the amount in dispute, but the district court invited General Star to move for summary judgment on that issue.

General Star made the motion and the district court denied General Star’s motion and entered summary judgment for Mutual Marine.  The court found that although General Star was not directly bound by the First Agreement, it was obligated to reimburse Mutual Marine under the terms of the General Star policy. The court found that UFI had agreed to “indemnify, defend and hold harmless ITO and the City,” and concluded that the directed verdict by the New York Supreme Court against ITO and the City was under any definition of the term, an adjudication of liability as to ITO and the City and ultimately, of UFI if and when called upon to indemnify ITO and the City.  The court found that General Star was obligated to reimburse Mutual Marine based on the judgment against ITO and the City, both because ITO and the City were additional insured under the General Star policy and because the district court considered the judgment to be an adjudication against UFI.  General Star noticed its appeal to the Second Circuit.

The question on appeal was whether Mutual Marine must bear the full cost, including a significant amount that exceeds its $1,000,000 limit, or whether General Star is obligated to reimburse Mutual Marine for that excess.

The Second Circuit agreed with the district court that General Star was not directly obligated to reimburse Mutual Marine under the First Agreement.  The First Agreement was not subscribed to by General Star or its attorney or other agent therefore; General Star is not directly bound by its terms.

The Second Circuit noted that the harder question is whether General Star is bound by the terms of its own policy with UFI to reimburse Mutual Marine.  On that issue the Second Circuit disagreed with the district court.  The court stated that the preliminary issue which must be addressed is whether UFI was “legally liable” for any amount, which would trigger the provision concerning the establishment of the amount of such liability.  In other words, only if General Star’s insured was legally liable does the question arise as to whether the amount of that liability was established in a manner consonant with the terms of the General Star policy.

The district court concluded that the judgment against ITO and the city in the Ernish lawsuit was an adjudication of liability, ultimately of UFI if and when called up to indemnify ITO and the City.  The Second Circuit disagreed.

Before the third-party action against UFI was litigated to a conclusion, ITO and the City reached a settlement with UFI, disposing of the third-party action and dismissing all claims against UFI with prejudice. By the time the Ernish lawsuit was decided UFI was no longer a party to it. The verdict in the State Court was against ITO and the City.

The Second Circuit pointed out that if UFI was “actually responsible” for Ernish’s injuries, it could have become liable to indemnify ITO and the City for the judgment against them.  As it stands with this case, that outcome was uncertain.  The law in New York is well established that a party seeking either contractual or common law indemnity must establish that it was free from any negligence and was held liable solely by virtue of statutory liability.

The Second Circuit Noted that the district court properly acknowledged that under the General Star policy, if UFI could prove that ITO or the City was negligent it would not have to pay for their share of the damages.  Notwithstanding this acknowledgement, however, the district court found that there was no evidence of negligence on the part of ITO or the City and that UFI would not have been able to receive indemnification from them.

The Second Circuit determined, however, that the district court was in no position to make that finding at the summary judgment stage as a matter of law.   The district court was making a finding in a lawsuit that was not before it – a hypothetical third party action by ITO and the City against UFI that was litigated to the finish.

The Second Circuit held that the Ernish adjudication was not tantamount to an adjudication of “legal liability” on the part of the UFI, and without an establishment of legal liability, “ultimate net loss” could not be established either.

The Second Circuit vacated the district courts order and remanded the case to the district court to address the factual question of whether the First Agreement established the legal liability of UFI and thereby obligated General Star to reimburse Mutual Marine.  Further stating that because the district court must determine in the first instance whether the legal liability of UFI was established in any way other than the Ernish judgment alone, the district court may also resolve on remand the related factual question of whether Mutual Marine was acting as a volunteer when it pain an amount in excess of its policy limit.

NOTE:           Although the facts in this case are somewhat unusual, the court’s decision does support the position that an insurer should not agree to indemnify an additional insured when there is even a remote possibility that that the potential indemnitees may be assessed even 1% of the liability, or that the indemnitor may not be liable at all.        

EARL’S PEARLS

Earl K. Cantwell
[email protected]

NEAT BURGLARS ARE THIEVES, NOT VANDALS

Thieves climbed onto the roof of the insured’s building and tore off portions of exterior panels that housed 17 air conditioning units.  The thieves broke into the AC units and stole copper condenser coils.  The value of the stolen copper was only about $2,000, but the damage to the air conditioning units was close to $200,000.  The insureds reported the theft to their insurer, Lloyds of London, and sought the cost of repair and replacement, and thus started the saga of Certain Underwriters at Lloyds of London v. Law, 2009 U.S. App. LEXIS 11771 (5th Cir. June 2, 2009). 

The commercial property insurance policy provided coverage for loss caused by vandalism, but excluded coverage for theft damage.  In turn, the theft exclusion contained an exception for damage resulting from burglars breaking into or exiting the building during the course of a crime.  Lloyds denied coverage based on the theft exclusion and litigation naturally ensued.  Eventually, the District Court sided with the insureds and awarded them $177,150 for the cost of repair, less the copper’s salvage value, plus attorneys’ fees.  Both parties filed notices of appeal and a further battle of dueling lexicons was rejoined.  The Fifth Circuit reversed the District Court and sided with the insurance company and denied the insured’s claim.  The insureds offered three primary arguments in support of their search for coverage which were all thwarted because these were very neat and non-invasive thieves.

The Fifth Circuit acknowledged that the term “vandalism” in its broadest dictionary meaning could encompass virtually all willful damage, including perhaps the damage caused during this burglary.  However, the insurance policy particularly defined vandalism as “willful and malicious damage” to or destruction of insured property.  The insured contended that the purpose for which the damage was done was irrelevant to determining whether the cause of damage was “vandalism”.  The Court disagreed and reasoned that damage done for no purpose other than to destroy property for the sake of destruction was vandalism.   Damage incidental to or done in furtherance of the thievery fell into the narrower category of theft damage.  Any damage to the insured building done by the criminals entering or exiting the building fell into the even narrower exception to the theft exclusion.  The appellate court ruled that damage done in furtherance of the theft or attempted theft was damage that fell within the theft exclusion.  Vandalism is damage done for no reason other than malicious destruction; this damage was regarded by the Court as incidental to a theft which fell within the theft exclusion.

The insured’s second argument was that damage excessive and unnecessary to the theft, even if done in furtherance of the theft, was still vandalism.  The Court rejected this analysis, and instead looked to the purpose of the damage, not its scope or degree.  The damage to the insured’s property was solely in furtherance of stealing the copper.  There was no evidence of purely malicious damage.  The policy defined vandalism conjunctively as willful and malicious damage to the property, so this damage still fell within the theft exclusion. 

The insured’s third and final argument was that this damage fell within the theft exclusion ingress/egress exception.  The appellate court did not buy this argument either,  finding that the damage did not fit in this exception using the definition of “breaking in” used in the Texas criminal courts as contemplating bodily entry into the interior space of a building bounded by the walls, floors and ceilings.   While the roof top AC units might be considered fixtures, entry into a fixture did not automatically translate to entry into the building.  The Court interpreted the exception to mean that the insurer would only pay for collateral damage caused by burglars’ attempt to gain access to the interior of the building as commonly understood. 

Strike three and the insureds were out.  The Fifth Circuit held that the damage done to the casings and machinery of the roof-top AC units resulted from theft which was governed by the theft exclusion to the policy and not by coverage for vandalism.  The damage did not result from “breaking and entering” into the building, and the judgment and insured’s victory of the District Court was reversed.

This case provides a lesson on the importance of clear and contextual reading of the policy coverage provisions.  The case is also a lesson on how covering provisions and then exclusions must be read in conjunction with each other, and the interplay which can exist between different provisions in the policy.  Claims have to be determined and adjusted according to the covering language in light of any possible exclusions or exceptions based upon the facts of each claim as determined by the investigation.  All of the policy language – definitions, covering language, exclusions, and exceptions – should be considered in analyzing and deciding a contested coverage claim. 

In this case, the investigation revealed that all of the damage was done as part of and in furtherance of the theft, and there did not appear to be any purely malicious vandalism by these most courteous of thieves.  Possible theoretical ambiguities in the policy language did not amount to “ambiguity” given the specific facts of the claim when read in connection with the covering language.  Contract terms and policy language are not ambiguous simply because a lawyer or a party argues for a different meaning.  Under traditional notions of contract interpretation and analysis of insurance policies, courts will not necessarily misconstrue or torture words to find ambiguity when the ordinary meaning of the policy language is explicit.  Here, the insureds attacked the policy language with three conceptual arguments which all foundered either on the facts of the claim or the covering language.

ACROSS BORDERS

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11/6/09           Ferro Corp. v. Cookson Group, PLC.,

Sixth Circuit Court of Appeals
A Duty to Defend Can Arise from Extraneous Matter to the Complaint, but Pleading Still Critical
Sixth Circuit Court of Appeals
Plaintiff Ferro Corp. competes in the manufacture and sale of plastic additives. In October 1995, Ferro purchased certain assets of Synpro—a Cookson affiliate—including its plastic additives business. Under the Asset Purchase Agreement (“APA”), Synpro retained all liabilities not expressly assumed by Ferror, including any liability it might have had for actual or alleged pre-closing antitrust violations. Cookson also agreed to defend and indemnify Ferro “from and against any loss, claim, cause of action or liability, cost, or expense . . . that arise out of . . . [a]ll Retained Liabilities of [Synpro] not expressly assumed by Ferro.” In March of 2003, Ferro was named as a defendant in a complaint alleging that various named and unnamed competitors in the plastics additives industry had violated state and federal antitrust laws from January, 1990 through January, 2003. None of the amended complaints mentions Synpro or Cookson. The court rejected plaintiff’s contention that even though nothing was apparent in the complaints in the Antitrust Cases that implicates Synpro, the discovery that took place in those cases revealed that the claims were based in part upon the conduct of Synpro. The court refused to look beyond the complaint, finding “[i]f the underlying factual allegations in the complaint do not fall potentially or arguably within the policy coverage, then there is no need to look beyond the allegations in the complaint, and the duty to defend is not triggered.” In this case, the fact that Synpro competed in the plastics additives industry during the time the allegations occurred, and the fact that the complaints recognized unnamed co-conspirators, is not sufficient potentially or arguably to state a claim against Ferro arising from Synpro’s Retained Liabilities for its pre-closing conduct. Thus Synpro did not have a duty to defend. Under Ohio law, the duty to defend is broader than the duty to indemnify, and in the absence of a duty to defend there is no obligation to indemnify. Therefore, Synpro did not have a duty to defend or indemnify.
Submitted by: Marc H. Harwell and Mi W. Belvin of Leitner, Williams, Dooley & Napolitan, PLLC.

11/04/09         Sadler v. State Farm Mutual Automobile Ins. Com
Ninth Circuit Court of Appeals
Insurer Has No Duty To Pre-Approve Medical Treatment Under Personal Injury Protection Provision In Automobile Policy
Insured brought suit against State Farm alleging breach of fiduciary duty and bad faith on grounds that State Farm did not pre-approve insured’s surgery under personal injury protection (“PIP”) provision of automobile insurance policy. The district court and the Ninth Circuit concluded that PIP did not require pre-approval for medical treatment, explicitly allowed State Farm to obtain an independent medical examination (“IME”), and indicated that payment was to be made as medical expenses were incurred. Because State Farm had no duty to pre-authorize insured’s surgery, State Farm could not be charged with any harm flowing from the insured’s decision to await the results of the IME before proceeding with treatment. Summary judgment for State Farm on the bad faith claim was also affirmed, as there was no evidence indicating that State Farm’s conduct was unreasonable.
Submitted by: Bruce D. Celebrezze & Michelle Y. McIsaac (Sedgwick, Detert, Moran & Arnold LLP)

REPORTED DECISIONS

Chang Ai Chung v. Levy


Sackstein, Sackstein & Lee, LLP, Garden City, N.Y. (Laurence
D. Rogers of counsel), for appellant.
Kelly, Rode & Kely, LLP, Mineola, N.Y. (Michelle Perlin of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated September 3, 2008, as, upon renewal, in effect, vacated its prior order dated May 30, 2008, denying the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and thereupon granted the motion.
ORDERED that the order dated September 3, 2008, is reversed insofar as appealed from, on the law, with costs, and, upon renewal, the order dated May 30, 2008, denying the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), is adhered to.
The Supreme Court erred in finding, upon renewal, that the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. Mathew M. Chacko, their examining neurologist. Dr. Chacko examined the plaintiff on November 7, 2007. On that date, Dr. Chacko performed various range-of-motion testing on the plaintiff, including cervical spine testing. According to Dr. Chacko's own findings, during this examination he noted significant limitations in the plaintiff's cervical spine range of motion (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805). While Dr. Chacko concluded that the decreased ranges of motion were "voluntary," he failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-restricted (see Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805; Torres v Garcia, 59 AD3d 705; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Accordingly, the Supreme Court, upon renewal, should have adhered to its original determination denying the defendants' motion for summary judgment without considering the sufficiency of the plaintiff's opposition papers (see Cuevas v Compote Cab Corp., 61 AD3d 812; Coscia v 938 Trading Corp., 283 AD2d 538).
Yamamoto v. Carled Cab Corp.


The Sullivan Law Firm, New York (Timothy M. Sullivan of
counsel), for appellants-respondents.
Robert Dembia, New York, for respondent-appellant.
Judgment, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 8, 2008, after a jury trial, awarding plaintiff $5,000 for past medical expenses including chiropractic services, $50,000 for past pain and suffering, $120,000 for future chiropractic services, and nothing for future pain and suffering, which brings up for review order, same court (Deborah A. Kaplan, J.), entered on or about December 7, 2007, to the extent it denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
A verdict for the plaintiff should only be set aside, based on the weight of the evidence, where "the evidence so preponderates in favor of the defendant that it could not have been reached on any fair interpretation of the evidence" (O'Boyle v Avis Rent-A-Car Sys., 78 AD2d 431, 439 [1981]). Here, plaintiff showed through objective measures that she suffered 20-to-40% loss of movement in the cervical spine, which was sufficient to support her claim of serious injury (see generally Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]). The jury award of damages for past pain and suffering and past and future medical costs does not deviate materially from what would be reasonable compensation. Defendants' motion for summary judgment, which considered much of the same proof as adduced at trial, was properly denied.
The jury's failure to award future pain and suffering is supported by the evidence showing that plaintiff had not altered her lifestyle, still worked the same job, cared for her child and participated in her daily activities. Moreover, given plaintiff's own testimony that chiropractic treatments have given her relief, albeit temporary, the jury could have concluded that funding regular chiropractic treatments would alleviate plaintiff's future pain.
Lee v. Laird


Calendar Date: September 11, 2009
Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and Stein, JJ.

Edelman & Dicker, L.L.P., Albany (Douglas R.
Kemp of counsel), for appellants.
The Harding Law Firm, L.L.C., Niskayuna (Charles R.
Harding of counsel), for respondent.
MEMORANDUM AND ORDER

Peters, J.
Appeal from an order of the Supreme Court (Lalor, J.), entered June 26, 2008 in Greene County, which, among other things, denied defendants' motion for summary judgment dismissing the complaint.
Plaintiff, a truck inspector for the Department of Transportation, was injured when a truck owned by defendant Swift Transportation Company, Inc. and operated by defendant Robert E. Laird Jr. collided with the vehicle in which he was recording the results of an inspection he had just performed. Initially diagnosed with a lumbar strain and hip contusion during his visit to a hospital emergency room, plaintiff was later found to be suffering a lumbar spine injury consisting of herniated discs at L4-5 and L5-S1. He then brought this action alleging serious injury within the meaning of Insurance Law § 5102 (d). In his bill of particulars, plaintiff asserted that he suffered a "permanent loss of use" and a "permanent consequential limitation of use" of his lumbar spine and lower back. Following joinder of issue, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury. Finding that plaintiff raised triable questions of fact as to whether he sustained a serious injury under the "permanent consequential limitation of use" and "significant limitation of use" categories of Insurance Law § 5102 (d), Supreme Court denied the motion [FN1] . This appeal ensued.
Supreme Court properly determined, and plaintiff does not dispute, that defendants made a prima facie showing that plaintiff did not suffer a serious injury as a result of the accident (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Nowak v Breen, 55 AD3d 1186, 1187-1188 [2008]; Tubbs v Pallone, 45 AD3d 959, 960 [2007], lv denied 10 NY3d 702 [2008]). Thus, the issue distills to whether plaintiff's submissions in opposition to the motion raise a triable issue of fact as to the existence of a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Nowak v Breen, 55 AD3d at 1188; Clements v Lasher, 15 AD3d 712, 712-713 [2005]).
As a preliminary matter, we first address Supreme Court's finding that plaintiff raised a factual issue as to whether he sustained a significant limitation of use of his lower back or lumbar spine. Since plaintiff did not allege in his bill of particulars that he suffered an injury under this category of serious injury and never moved to amend his bill of particulars to add such category, the references thereto in his brief on appeal are not considered, and should not have been considered by Supreme Court in opposition to defendants' motion (see MacDonald v Meierhoffer, 13 AD3d 689, 689 [2004]; Seymour v Roe, 301 AD2d 991, 995 n 4 [2003]; see also Sharma v Diaz, 48 AD3d 442, 443 [2008]; Hall v Barth, 36 AD3d 1050, 1051 n [2007]).
With respect to his claim that he suffered a permanent consequential limitation of use, plaintiff principally relied on the affidavit of his treating chiropractor, Debra Macko, who treated him on more than 140 occasions after the accident. Macko averred that an MRI taken two months after the accident revealed "a severe lumbar spine injury consisting of herniated discs and a torn disc placing pressure on and displacing the sciatic nerve root at both the L4-L5 and L5-S1 levels." Since proof of a herniated disc, by itself, is insufficient to establish a serious injury, Macko was further required to provide a designation of a numeric percentage of plaintiff's loss of range of motion or a "qualitative assessment of [his] condition . . . , provided that the evaluation has an objective basis and compares [his] limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure v Avis Rent A Car Sys., 98 NY2d at 350 [emphasis omitted]; see Pianka v Pereira, 24 AD3d 1084, 1085 [2005]; Gonzales v Green, 24 AD3d 939, 940-941 [2005]). In this regard, Macko opined that, based upon the MRI results, plaintiff's medical records and her physical examinations of plaintiff, these disc herniations were causally related to the accident and resulted in nerve root impingement and radiculopathy, causing pain, weakness and numbness in plaintiff's right leg. She further averred that plaintiff's muscle atrophy in his right leg, which was objectively confirmed by two other physicians with whom plaintiff treated, is a direct consequence of the lumbar spine injury that he received from the accident. Moreover, she specified the degree of impairment suffered by plaintiff and opined that, with no change in plaintiff's condition after more than a 24 months of treatment, plaintiff's condition, including his atrophy, was permanent in nature and not subject to improvement. We find these averments to be sufficient to raise a question of fact concerning whether plaintiff suffers from a permanent consequential limitation of use of a body organ or member (see Chunn v Carman, 8 AD3d 745, 746-747 [2004]; Brewer v Weston, 309 AD2d 1088, 1089 [2003]; Hassam v Rock, 290 AD2d 625, 626 [2002]).
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as found an issue of fact as to whether plaintiff sustained a serious injury under the significant limitation of use category of Insurance Law § 5102 (d), and, as so modified, affirmed.
Footnotes

Footnote 1: In opposition to the motion, plaintiff did not dispute defendants' proof that he did not sustain a permanent loss of use of his lumbar spine and lower back and, on appeal, has withdrawn his claim under this category.

Liberty Surplus Insurance Corporation v. National Union Fire Insurance Company of Pittsburgh, Pa.



Sedgwick, Detert, Moran & Arnold LLP, New York (Timothy
D. Kevane of counsel), for National Union Fire Insurance
Company of Pittsburgh, Pa., appellant.
Bevan, Mosca, Giuditta & Zarillo, P.C., New York (Anthony J.
Zarillo, Jr. of counsel), for Mitsui Sumitomo Insurance
Company of America, appellant.
Jaffe & Asher, LLP, New York (Marshall T. Potashner of
counsel), for respondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered August 6, 2008, which denied defendants' motions to dismiss the fifth, sixth and seventh causes of action in the amended complaint, unanimously affirmed, with costs.
A contract of liability insurance is governed by "the local law of the state which the parties understood was to be the principal location of the insured risk" (Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 318 [1994], quoting Restatement [Second] of Conflict of Laws § 193). Where the covered risks are spread over multiple states, courts will generally locate the risk in one state, namely, "the state of the insured's domicile at the time the policy was issued," and a "corporate insured's domicile is the state of its principal place of business" (Certain Underwriters at Lloyd's, London v Foster Wheeler Corp., 36 AD3d 17, 24-25 [2006], affd 9 NY3d 928 [2007]). The liability policies at issue in this action were issued by defendants to Hontz Elevator Company, which had operations in several states but maintained its principal place of business in Connecticut, the state of its incorporation. Accordingly, the subject policies, which do not contain choice-of-law provisions, are governed by Connecticut law. We further note that the accident giving rise to the underlying personal injury litigation occurred in Connecticut; that the subject policies contain amendatory endorsements required by Connecticut law but no New York endorsements; and that the record, while showing that Hontz had locations in Connecticut, Florida, Massachusetts and Rhode Island, gives no indication Hontz conducted any operations in New York.
We reject defendants' contention that the fifth cause of action, for breach of the duty of good faith and fair dealing, and the seventh cause of action, alleging violations of Connecticut's Unfair Insurance Practices Act and Unfair Trade Practices Act, are not viable under Connecticut law (see Active Ventilation Prods. v Property & Cas. Ins. Co. of Hartford, 2009 Conn Super LEXIS 1967, 2009 WL 2506360). We reject defendants' similar contention with respect to the sixth cause of action for breach of fiduciary duty on that basis, and find that that cause of action was adequately pleaded under Connecticut law (see Grazynski v Hartford Ins. Co., 1997 Conn Super LEXIS 1876, 1997 WL 407897).
Parsippany Construction Company, Inc. v. CNA Insurance Company


Carroll McNulty & Kull, LLC, New York, N.Y. (Kristin V.
Gallagher and John P. De Filippis of counsel), for appellant.
Clifton Budd & DeMaria, LLP, New York, N.Y. (Robert J. Tracy
and Matthew A. Siebel of counsel), for
respondent.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend the plaintiff as an additional insured in an underlying personal injury action entitled Henriquez v Parsippany Constr. Co., Inc., pending in the Supreme Court, Rockland County, under Index No. 6926/03, the defendant appeals from an order of the Supreme Court, Rockland County (Nelson, J.), dated May 7, 2008, which granted the plaintiff's motion for summary judgment declaring that the defendant is obligated to defend the plaintiff in the underlying action and denied its cross motion for summary judgment.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment declaring that the defendant is obligated to defend the plaintiff in the underlying action.
The plaintiff established its prima facie entitlement to judgment as a matter of law on its cause of action for a judgment declaring that the defendant is obligated to defend it in the underlying personal injury action by tendering evidence sufficient to demonstrate, as a matter of law, that it is an additional insured as this term is defined by the subject policy, and that the allegations in the underlying complaint fell within the scope of coverage (see Kassis v Ohio Cas. Ins. Co., 12 NY3d 595; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The burden then shifted to the defendant to establish the absence of coverage (see Matter of Allstate Ins. Co. v Berger, 47 AD3d 708, 710), which it failed to do.
Further, since the defendant failed to disclaim coverage in compliance with Insurance Law § 3420(d), it cannot avoid liability based upon policy exclusions (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-189).
Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Rockland County, for the entry of a judgment declaring that the defendant is obligated to defend the plaintiff in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
Herrnsdorf v. Bernard Janowitz Construction Corporation


Dinkes & Schwitzer P.C., New York, N.Y. (Naomi J. Skura of
counsel), for appellant-respondent.
Farber Brocks & Zane LLP, Mineola, N.Y. (Audra S. Zane and
Sherri N. Pavloff of counsel), for third-
party defendant-appellant.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland and
Dominic Zafonte of counsel), for
defendants-respondents-appellants.
Russo, Keane & Toner, LLP, New York, N.Y. (Alan S. Russo
and Thomas F. Keane of counsel), for
defendant third-party plaintiff-
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated March 28, 2008, as denied his motion for summary judgment on the issue of liability under Labor Law § 240(1), the defendants Westbrook Partners, LLC, and W.J. Harbor Ridge, LLC, cross-appeal, as limited by their brief, from so much of the same order as did not decide that branch of their cross motion which was for summary judgment dismissing the plaintiff's common-law negligence cause of action and held in abeyance those branches of their cross motion which were for conditional summary judgment in their favor on their contractual and common-law indemnification cross claims against the defendant Bernard Janowitz Construction Corporation, and the third-party defendant Utica First Insurance Company appeals, as limited by its brief, from stated portions of the same order which, inter alia, denied that branch of its pre-answer motion pursuant to CPLR 3211(a)(1) which was to dismiss the third-party complaint insofar as asserted against it.
ORDERED that the cross appeal by the defendants Westbrook Partners, LLC, and W.J. Harbor Ridge, LLC, is dismissed, as those branches of their cross motion which were for summary judgment dismissing the plaintiff's common-law negligence cause of action and for conditional summary judgment in their favor on their contractual and common-law indemnification cross claims against the defendant Bernard Janowitz Construction Corporation remain pending and undecided (see Katz v Katz, 68 AD2d 536); and it is further,
ORDERED that the order is affirmed insofar as appealed and cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant third-party plaintiff, payable by the remaining parties appearing separately and filing separate briefs.
The plaintiff, a carpenter, allegedly was injured when he fell off a roof of a house while installing metal trims. The property was owned by the defendant W.J. Harbor Ridge, LLC (hereinafter Harbor Ridge), which also owned the defendant Westbrook Partners, LLC (hereinafter Westbrook). Harbor Ridge entered into a contract with the defendant Bernard Janowitz Construction Corporation (hereinafter Janowitz) whereby Janowitz, as general contractor, would construct and develop approximately 100 homes on the undeveloped property owned by Harbor Ridge. The plaintiff was employed by the third-party defendant Allright Construction Corp. (hereinafer Allright), which was subcontracted by Janowitz to install metal panels and trims on the roofs of houses in the development under construction.
The plaintiff commenced this action against Janowitz, Harbor Ridge, and Westbrook, alleging causes of action based on common-law negligence and Labor Law §§ 200, 240(1), and 241(6). Janowitz commenced a third-party action against Allright and Utica First Insurance Company (hereinafter Utica First). Janowitz sought a declaration that Utica First was required to defend it against the claims asserted by the plaintiff on the ground that it was listed as an additional insured pursuant to an insurance policy between Utica First and Allright.
The Supreme Court denied the plaintiff's motion for summary judgment on the issue of liability on the cause of action based on Labor Law § 240(1) asserted against Janowitz, Harbor Ridge, and Westbrook, and denied Utica First's pre-answer motion.
" Labor Law § 240 (1) imposes a nondelegable duty upon owners and contractors to provide or cause to be furnished certain safety devices for workers on an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law'" (Riccio v NHT Owners, LLC, 51 AD3d 897, 898, quoting Andino v BFC Partners, 303 AD2d 338, 339). Generally, to establish a prima facie violation of Labor Law § 240(1) a claimant must establish that "the statute was violated and that this violation was a proximate cause of his or her injuries" (Sprague v Peckham Materials Corp., 240 AD2d 392, 393; see Orellana v American Airlines, 300 AD2d 638, 639; Gardner v New York City Tr. Auth., 282 AD2d 430, 431). Where a " plaintiff's actions [are] the sole proximate cause of his injuries . . . liability under Labor Law § 240(1) [does] not attach'" (Robinson v East Med. Ctr., LP, 6 NY3d 550, 554, quoting Weininger v Hagedorn & Co., 91 NY2d 958, 960; see Blake v Neighborhood Hous. Servs. of N.Y.City, 1 NY3d 280; Coates v Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 56 AD3d 599).
Here, the plaintiff failed to establish, prima facie, that the ladder did not provide him with proper protection under Labor Law § 240(1), and that his actions were not the sole proximate cause of his injuries (see Riccio v NHT Owners, LLC, 51 AD3d at 899; Gonzalez v Plain Edge High School Dist., 300 AD2d 540). Since the plaintiff failed to establish his prima facie entitlement to summary judgment on his Labor Law § 240(1) claim, it is not necessary to consider the sufficiency of the opposition papers of Janowitz, Westbrook, and Harbor Ridge (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
The Supreme Court properly denied that branch of Utica First's motion which was pursuant to CPLR 3211(a)(1) to dismiss the third-party complaint. "[I]n order for a complaint to be dismissed pursuant to CPLR 3211(a)(1), the evidence submitted must resolve [ ] all factual issues as a matter of law, and conclusively dispose of the plaintiff's claim'" (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622, quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347). Utica First failed to conclusively demonstrate that Janowitz was not an additional insured to the insurance policy. Additionally, Utica First could not rely on affidavits in support of its motion to dismiss pursuant to CPLR 3211(a)(1) because they do not constitute documentary evidence (see Berger v TempleBeth-El of Great Neck, 303 AD2d at 347).
720-730 Fort Washington Avenue Owners Corp. v. Utica First Insurance Company


Paul A. Victor, J.

RELIEF SOUGHT
Defendant Utica First Insurance Company [hereinafter Utica First] moves for dismissal of the plaintiff's complaint and all cross-claims brought against it in this matter, and a declaration that it has no duty to either defend or indemnify the plaintiff in the underlying personal injury action.

ISSUE PRESENTED
Should written exclusions inserted into a general commercial liability insurance policy which render the supposed coverage almost meaningless, be declared unenforceable as violative of the public policy and core objective of New York State to protect construction workers ?

FACTUAL BACKGROUND
In this action plaintiff 720-730 Fort Washington Avenue Owners Corp. [hereinafter Fort Washington] seeks an order and judgment declaring that defendant Utica First and Rauman must indemnify Fort Washington and defend it in a companion personal injury matter. Defendant Utica First moves for an order to dismiss that action.

The alleged tort incident underlying this case occurred on March 27, 2007 at premises owned by plaintiff Fort Washington. At that time, a worker, Marcos Giovanny Castellon [hereinafter Castellon] claims to have been injured when a concrete block fell on him. In the ]related tort action, the parties involved in this incident, are as follows:

  • Plaintiff —Marcos Giovanny Castellon— employee of Rauman Construction Company.
  • Defendant/third party plaintiff — Fort Washington; owner of the premises.
  • Third party defendant— Rauman Construction Company — subcontractor; and plaintiff's employer.

On May 15, 2006 Fort Washington entered into a contract with DNA Contracting [hereinafter DNA] to perform renovation work at its premises. DNA entered into a sub-contract with Rauman that same day to perform masonry and roof replacement work. The contract between DNA and Rauman required that Rauman purchase general commercial liability coverage and name DNA and Fort Washington as additional named insureds. Rauman purchased insurance from Utica which named those entities as additional insureds, but the policy contained three exclusions that are at issue here: (1) an "employee" exclusion, (2) an exclusion for "roofing work", and (3) an exclusion for any liabilities assumed under contract or agreement.

The "employee exclusion" reads as follows:
This insurance does not apply to:
(i) bodily injury to any employee of any insured, to any contractor hired or retained by or for any insured or to any employee of such contractor, if such claim for bodily injury arises out of and in the course of his/her employment or retention of such contractor by or for any insured, for which any insured may, liable in any capacity;
(ii) any obligation of any insured to indemnify or contribute with another because of damage arising out of the bodily injury; or
(iii) bodily injury sustained by the spouse, child, parent, brother or sister of an employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of the bodily injury to such employee, contractor or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured.

The "roofing work" exclusion reads as follows:
It is hereby understood and agreed that such insurance as is afforded by coverage L-bodily injury, property damage coverage and coverage N-products/completed work coverage does not apply to bodily injury, property damage, products or completed work arising out of any roofing operations, which involve any replacement roof or recovering of the existing roof.

The exclusion for liabilities assumed under contract or agreement reads as follows:
1. "We" do not pay for "bodily injury", "property damage", "personal injury", or "advertising injury" liability which is assumed by the "insured" under a contract or an agreement.

This exclusion does not apply to:
a. Liability that an "insured" would have had in the absence of the contract or agreement; or
b. "Bodily injury or property damage" covered under the contractual liability coverage, [provided that the "bodily injury" or "property damage" occurs after the effective date of the contract or agreement.

On March 30, 2007 Castellon commenced a lawsuit only against the premises owner (Fort Washington) in the Supreme Court, Bronx County. In that complaint, Castellon made the following pertinent allegations:
"24. That on March 23, 2007, plaintiff was engaged in the performance of construction, renovation, demolition, painting, repair and or alterations at said premises. premises.
25. That on March 23, 2007, while working as [sic] said premises, plaintiff was struck by a falling and or inadequately secured object causing severe personal injuries";

and in that tort action the plaintiff asserted causes of action for violations of §§200, 240 and 241 of the Labor Law of the State of New York, as well as a cause of action for common law negligence.
Utica First received notice of the plaintiff's accident on April 24, 2007; and on June 1, 2007, it received a letter from the counsel for Fort Washington tendering the defense and seeking indemnity for Fort Washington under the Utica First policy. On June 21, 2007, Utica First declined the tender based upon the three exclusions mentioned above. As a result of the disclaimer, DNA and its insurance carrier, Liberty International Underwriters, assumed the defense of Fort Washington pursuant to its contract with the owner.

Fort Washington thereafter commenced a third-party lawsuit against Rauman in the tort action seeking contractual indemnification; and also commenced the instant lawsuit seeking that "a judgment be entered compelling Rauman and Utica to defend and indemnify Fort Washington" for all costs, expenses, and liability .

CONTENTIONS OF THE PARTIES
Utica First seeks summary judgment, a dismissal of the plaintiff's complaint and a declaration that it has no duty to defend or indemnify Fort Washington or Rauman. It argues that since Castellon was employed by Rauman to do roofing repair work, the "employee" and "roofing work" exclusions are applicable; and nullify all insurance coverage.

Fort Washington does not argue the inapplicability of the exclusions, but instead argues, among other things, that the insurance policy is illusory and should be held to be against public policy since it does not provide any of the insureds with the usual construction site coverage required under its agreement with DNA and Rauman. Fort Washington also contends that the motion should be denied as premature since discovery has not yet been completed; and questions of fact remain as to whether or not Castellon was, in fact, working in the course of his roofing duties with Rauman ; and finally, Fort Washington argues that Utica must defend under the policy even if it need not indemnify, since the duty to defend is greater than the duty to indemnify.

As to Fort Washington, Utica argues, among other things, that since Fort Washington has admitted that Castellon was working in the course of his employment with Rauman, and performing roofing operations, no further discovery is necessary since both the "employee" and "roofing" exclusions apply. As to the argument that its insurance contract is violative of public policy, Utica argues that exclusions are necessary to precisely define the scope of coverage. Finally, Utica states that, although the duty to defend is broader than the duty to indemnify, that it does not attach, when, as here the complaint and claims are so totally baseless.

APPLICABLE LAW

Summary Judgment Standards
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the burden of production (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus if the evidence on the issue is evenly balanced, the party that bears the burden must lose.' (Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra , 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].)

Thus, when the existence  of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).

Summary judgment has been termed a drastic measure, however, since it deprives a party of his day in court and will normally have res judicata effects(see Siegel, New York Practice, § 287). Thus, it may be granted without a trial only if no genuine, triable issue of fact is presented ( Werfel v Zivnostenska Banka, 287 NY 91 [1941]; CPLR 3212, subds [b], [c]).

Duty to Defend/Duty to Indemnify
It is well settled that an insurer's "duty to defend [its insured] is 'exceedingly broad' and an insurer will be called upon to provide a defense whenever the allegations of the complaint 'suggest . . . a reasonable possibility of coverage' " (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131 [2006].) "The duty to defend is derived from the allegations of the complaint and the terms of the policy. If the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend" (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66 [1989];BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708 [2007] A duty to defend is triggered by the allegations contained in the underlying complaint. The inquiry is whether the allegations fall within the risk of loss undertaken by the insured [*5]"[a]nd, it is immaterial that the complaint against the insured asserts additional claims which fall outside the policy's general coverage or within its exclusory provisions" (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435 [2002] The merits of the complaint are irrelevant; the insured's right to be accorded legal representation is a contractual one, and is part of the consideration upon which the premium is based. See, Servidone Construction Co. v. Security Insurnace Company of Hartford, 64 NY2d 419[1985].This right to defense exists even if debatable theories are alleged in the pleading against the insured. See, BP A.C. Corp v. One Beacon, supra ., at 714.

If the claim, liberally construed, is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be. Colon v. Aetna Life and Casualty, 66 NY2d 6 [1985]. However, "a court should not attempt to impose the duty to defend on an insurer through a strained, implausible reading of the complaint that is linguistically conceivable but tortured and unreasonable." Northville Indust. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 89 NY2d 621[1997]; AMTRAK v. Steadfast Ins. Co., 2009 U.S. Dist. LEXIS 21311 (S.D.NY Mar. 5, 2009).

Public Policy— Labor Law Violations
Labor Law §240, being remedial in nature, must be accorded a liberal interpretation so as to extend the widest protection to the worker, in order to "carry out the reforms intended and to promote justice". (McKinney's Cons Laws of NY, Book 1, Statutes §§321, 302.)

The core objective of §240 (and the public policy of the State of New York) is "proper protection" for construction workers. Therefore, a non-delegable duty is imposed upon all responsible entities to protect construction workers, not just with scaffolds, but with such "other devices ... as to give proper protection to [such workers]" (Labor Law §240[1]). When a construction worker is not provided with "proper protection" and is injured as a result of one of the hazards which Section 240 was enacted to eradicate, the general common-law defenses are not available, and absolute liability is vicariously imposed on all those deemed by the legislature to be responsible entities, i.e. "Contractors and owners and their agents". (Labor laws §240[1]). Therefore, trial courts have been repeatedly cautioned by the New York Court of Appeals to be guided by one overriding and controlling mandate, namely, that section 240 "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed"( Rococovich v. Consolidated Edison Co., 78 NY2d 509, 513 [1991], quoting Quigley v. Thatcher, 207 NY 66, 68; Ross-Curtis-Palmer Hydroelecrtic Co., 81 NY2d 494, 500[1993]).

Public Policy — Insurance and Contract Law
As stated by the Court Of Appeals in Slayko v. Security Mutual Insurance Company, 98 NY2d 289 [2002]:

The "public policy of this state when the legislature acts is what the legislature says that it shall be. [citation omitted]. Conversely, when statutes and Insurance Department regulations are silent, we are reluctant to inhibit freedom of contract by finding insurance policy clauses violative of public policy [citations omitted]. When we recently found an exclusion unenforceable because it detracted from the statutorily-mandated minimum fire insurance coverage, we explicitly limited our decision to matters involving fire insurance (see Lane v Security Mut. Ins. Co., 96 NY2d 1, 6, 724 NYS2d 670, 747 NE2d 1270 [2001]).

Insurers, therefore, are prohibited from limiting their contractual liability only as to statutorily mandated coverage. Pfoh v. Electric Ins. Co., 14 AD3d 777 [ 3d Dept. 2005]. See,

NY Cent. Mut. Fire Ins. Co. v. Nationwide Mut. Ins. Co., 307 AD2d 449 [ 3d Dept 2003][an exclusion for "criminal acts" held not contrary to public policy, "as the Legislature has expressed a preference to facilitate rather than hinder insurers' efforts to remove coverage for persons who perform criminal acts"]; TAG 380, LLC v. ComMet 380, Inc. 10 NY3d 587 [2008][ exclusion in a fire insurance policy that excluded coverage for an intentional fire set by "an insured" not enforceable as violative of Insurance Law § 3404].

DISCUSSION

Indemnity Coverage
The Court notes at the outset that no claim has been made by Fort Washington that the three exclusions at issue were vague, ambiguous or inapplicable; and therefore, the sole issue submitted is whether those three exclusions are violative of public policy, and whether, despite the language of those exclusions, Fort Washington might still be entitled to provide a defense.

In order to fulfill the requirements of the Labor Law and to indemnify themselves during the course of construction, owners and contractors usually purchase insurance coverage for the additional vicarious liability which has been statutorily cast upon them by Labor Law §240 and the public policy of New York to provide proper protection for construction workers. In addition owners and general contractors often require their sub-contractors and other agents to purchase this insurance on their behalf. See, for example, the proper coverage provided by the general contractor herein, DNA, to Fort Washington via its insurance policy purchased from Liberty National Underwriters; and compare same with the Utica First policy. While on its face the Utica First "general liability insurance" policy appeared to provide adequate coverage, the exclusions buried within its terms, rendered it inadequate for the purposes intended. In other words, as to Fort Washington and DNA, the "general liability insurance policy" issued by Utica First was, in essence, misleading.  It was certainly not the insurance policy which provided the coverage necessary to protect them from the construction site risks and the vicarious liability imposed by the Labor Law; and it was not the policy which Rauman was required to obtain by its agreement with Fort Washington and DNA.

However, the issuance by Utica First of this inadequate insurance policy violated no regulation or statutorily declared public policy regarding the contents of an insurance policy. As stated above, "the public policy of this state ... is what the legislature states it should be ... [and] when statutes and Insurance Department regulations are silent, [ the courts] are reluctant to inhibit freedom of contract by finding insurance policy clauses violative of public-policy". (Slayko v. Security Mutual Ins Co., 98 NY2d 289 [2002]; see also, NY Cent. Mut. Fire Ins. Co. [*7]v. Nationwide Mut. Ins. Co., 307 AD2d 449 [ 3d Dept 2003][an exclusion for "criminal acts" held not contrary to public policy, "as the Legislature has expressed a preference to facilitate rather than hinder insurers' efforts to remove coverage for persons who perform criminal acts"];Pfoh v. Electric Ins. Co., 14 AD3d 777 [ 3d Dept. 2005][ "resident-relative exclusion" in automobile policy did not violate legislative intent and public policy underlying the liability insurance coverage for motor vehicles mandated by Vehicle and Traffic Law § 311 (4)(a)]; compare, Lane v. Security Mutual Insurance Co., 96 NY2d 1,6[2001] [ exclusions found unenforceable because they detracted from the statutorily mandated minimum insurance coverage];TAG 380, LLC v. ComMet 380, Inc. 10 NY3d 587 [2008][ exclusion in a fire insurance policy that excluded coverage for an intentional fire set by "an insured" not enforceable as violative of Insurance Law § 3404].

The issuance of this worthless policy, although indirectly an impediment to the achievement of the remedial reforms enacted, is not directly violative of the core objective and declared public policy of the Labor Law to protect construction workers by providing them with additional responsible entities and persons. The requirements of the Labor Law have been fulfilled, since the statutorily mandated responsibility of the owner (Fort Washington) and general contractor (DNA) are not directly impacted by the failure to obtain insurance. The ability or inability of these entities to pay a damage award (although relevant to the core objective) is a separate issue; and there is no corresponding public-policy mandate set forth in the Insurance Law, or its implementing regulations, which would "insure" that funds would be available which would provide the coverage needed by "owners, contractors and their agents" to indemnify them from claims made by injured construction workers. In other words, in those instances where uninsured owners and/or contractors do not have the ability to pay a damage award, the public policy of New York is incomplete, and thus defeated. This weakness in the law could easily be remedied by a statute or regulation which would mandate the issuance of a "uniform construction site insurance policy". Such a mandated uniform insurance policy, of course, should preclude an insurance carrier from incorporating such exclusions, or if included, have them declared unenforceable as violative of public policy. Obviously, there are many construction companies which have no assets beyond the funds provided by insurance to pay a damage award. For them and for their workers, the laudable core objective becomes an empty gesture without insurance coverage. It would certainly seem practical, and reasonable, therefore, to extend the worker-protection public policy goal to the Insurance Law and/or its implementing regulations. However, since the Legislature has not yet chosen to further implement and fortify the Labor Law's core objective by an amendment to the Insurance Law, this Court is powerless to do so.

Caveat Emptor

Unfortunately, the Insurance Law and the Insurance Department regulations are silent and provide no explicit guidance or protections for insureds as to the minimum requirements for a construction site insurance policy. Although the silence of the Legislature seems somewhat inconsistent with the Labor Law's core objective, the only rule applicable here is, "caveat emptor"- let the buyer beware! "This maxim summarizes the rule that a purchaser must examine, judge and test for himself". (Black's Law dictionary, 4th edition). While the insurance policy may have been misleading and rendered meaningless due to the exclusions, Fort Washington and DNA nevertheless had a duty to do a "due diligence" review of the policy presented by Rauman. Had they read the policy when it was first presented they may have observed the exclusions and rejected the policy as not in compliance with the construction contract requirements. Having failed to do so, they left themselves exposed; and there is no public-policy mandate which the Court can utilize to rescue them or the injured worker, if these entities do not have sufficient coverage and/or the ability to pay a damage award. In that regard the Court notes that, because of the absence of any statutory mandate, Utica First, the defendant herein, has been repeatedly successful in having its insurance policy exclusions judicially upheld. See, for example, Bassuk Bros. v. Utica First Ins. Co., 1 AD3d 470 [2d Dept 2003][ exclusion for "bodily injury to an employee of an insured if it occurs in the course of employment", upheld]; Utica First Insurance Company v Star-Brite Painting & Paperhanging , 36 AD3d 794 [2d Dept. 2005][ exclusion in automobile policy for claims of "negligent hiring", upheld]; Ruge v. Utica First Ins. Co., 32 AD3d 424 [2d Dept 2006][ an automobile exclusion under a contractor's insurance policy, upheld]; Massot v. Utica First Ins. Co., 36 AD3d 499 [1st Dept 2007][ denial of coverage on basis of the policy's exclusion for services rendered by an unlicensed employee, upheld]; Sixty Sutton Corp. V. Utica First Insurance Co., 34 AD3d 386 [1st Dept. 2006]["employee exclusion", upheld].

As stated above, the court is sympathetic to the argument advanced by Fort Washington that the exclusions resulted in only an illusion of coverage. Unfortunately, this court is constrained by the decision of the Court of Appeals in Slayko, supra ., to enforce the contract with it's exclusions, as written by defendant Utica First and accepted by the plaintiff.

Defense
The court finds, under the circumstances of this case, that Utica First need not provide a defense to Fort Washington. While it is axiomatic that the duty to defend is broader than the duty to indemnify, the obligation to defend, is not here even arguable. Coverage, having been rendered moot by the exclusions, there is no legitimate reading of the complaint under which this coverage could be deemed plausible. Thus, it would be manifestly unreasonable to impose a duty to defend.

CONCLUSION
The motion by Utica First against Fort Washington is granted in its entirety, and the complaint is dismissed as to defendant Utica First.

The Court notes that defendant Rauman failed to respond to the motion by Utica First for dismissal of all cross-claims in this action; and therefore, the motion by Utica First to dismiss Rauman's cross claims against it, is granted on default.
This constitutes the decision and order of the court.

Giannini v. Cruz


Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(Stacy R. Seldin of counsel), for appellant.
David Katz & Associates, LLP, New York, N.Y. (Salvatore J.
Sciangula of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 29, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Elena Giannini did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Elena Giannini did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.
The defendant made a prima facie showing that the plaintiff Elena Giannini (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-352; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiffs failed to raise a triable issue of fact. Only the reports and affirmation of Dr. Raphael J. Osheroff, the injured plaintiff's treating physician, were affirmed, and the plaintiffs' remaining submissions concerning the injured plaintiff were unsworn and insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813, 814-815; Maffei v Santiago, 63 AD3d 1011, 1011-1012; Niles v Lam Pakie Ho, 61 AD3d 657, 659; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Patterson v NY Alarm Response Corp., 45 AD3d 656, 656; Verette v Zia, 44 AD3d 747, 748; Nociforo v Penna, 42 AD3d 514, 515; Pagano v Kingsbury, 182 AD2d 268, 271). While Dr. Osheroff noted in his reports that the injured plaintiff had limitations in her cervical spine and left shoulder, he failed to either quantify those limitations or provide a qualitative assessment of those regions (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Taylor v Flaherty, 65 AD3d 1328; Barnett v Smith, 64 AD3d 669, 671; Shtesl v Kokoros, 56 AD3d 544, 546). Furthermore, it is clear from Dr. Osheroff's affirmation that he relied primarily on range of motion findings from the unsworn reports of other physicians in arriving at his conclusions concerning the injured plaintiff (see Sorto v Morales, 55 AD3d 718, 719; Malave v Basikov, 45 AD3d 539, 540; Furrs v Griffith, 43 AD3d 389, 390; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267).
The plaintiffs also failed to set forth any competent medical evidence to establish that the injured plaintiff sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Ciancio v Nolan, 65 AD3d 1273; Shmerkovich v Sitar Corp., 61 AD3d 843, 844; Sainte-Aime v Ho, 274 AD2d 569, 570).
Menezes v. Khan


Baker, McEvoy, Morrissey & Moskovits, P.C. (Timothy M.
Sullivan, New York, N.Y., of counsel), for appellants.
Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne
of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered March 18, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants did not address the plaintiff's claim, clearly set forth in his bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Negassi v Royle, 65 AD3d 1311; Alvarez v Dematas, 65 AD3d 598; Rahman v Sarpaz, 62 AD3d 979, 980; Smith v Quicci, 62 AD3d 858, 859). The plaintiff alleged in his bill of particulars that he missed three months of work as a result of the accident, and the defendants' neurologist and orthopedist were both advised of this allegation. However, neither of these experts, who did not examine the plaintiff until more than three years after the accident, related his findings to the 90/180 day category of serious injury. The affirmed medical reports of the defendants' radiologist also failed to establish that the plaintiff did not sustain a serious injury as a result of the accident. Although the radiologist opined that the plaintiff had not suffered any traumatic injury to his cervical and lumbar spines, her reports did not address any of the other injuries alleged in the plaintiff's bill of particulars, including bilateral shoulder and knee injuries (see Takaroff v A.M. USA, Inc., 63 AD3d 1142, 1143; Rahman v Sarpaz, 62 AD3d at 980; Delayhaye v Caledonia Limo & Car Serv., Inc., 61 AD3d 814, 815; Carr v KMO Transp., Inc., 58 AD3d 783, 784-785; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769, 770).
Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Takaroff v A.M. USA, Inc., 63 AD3d at 1144; Rahman v Sarpaz, 62 AD3d at 980).
Peter v. Palencia


Alpert & Kaufman, LLP, New York, N.Y. (Morton Alpert of
counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of
counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), dated October 30, 2008, which, upon an order of the same court dated September 16, 2008, granting the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of the Insurance Law § 5102(d), is in favor of the defendant and against him dismissing the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the order dated September 16, 2008, is modified accordingly.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his lumbar spine under the significant limitation or permanent consequential limitation of use category of Insurance Law § 5102(d) as a result of the subject accident. The plaintiff relied upon, inter alia, the affirmation of his treating neurologist, Dr. Cecily Anto, which revealed significant range-of-motion limitations in the plaintiff's lumbar spine, based on objective range-of-motion testing, following both contemporaneous and recent examinations of the plaintiff. Moreover, in her affirmation, Dr. Anto properly noted the findings contained in the plaintiff's MRI report concerning his lumbar spine which revealed, inter alia, that the plaintiff had herniated discs at L4-5 and L5-S1. Dr. Anto concluded, in her affirmation, that the injuries to the plaintiff's lumbar spine were the result of the subject accident. Dr. Anto opined that the injuries to the plaintiff amounted to a permanent consequential limitation of use of, among other things, his back, and/or a significant limitation of use of, inter alia, his back. Thus, the affirmation of Dr. Anto was sufficient to raise a triable issue of fact as to whether the plaintiff sustained permanent consequential or significant limitation of use of his lumbar spine as a result of the subject accident (see Wagenstein v Haoli, 64 AD3d 584; Su Gil Yun v Barber, 63 AD3d 1140; Pearson v Guapisaca, 61 AD3d 833; Williams v Clark, 54 AD3d 942; Casey v Mas Transp., Inc., 48 AD3d 610; Acosta v Rubin, 2 AD3d 657).
The plaintiff adequately explained, in his affidavit, any lengthy gap in his treatment (see Black v Robinson, 305 AD2d 438).
Dean v. Brown


Calendar Date: September 16, 2009
Before: Mercure, J.P., Lahtinen, McCarthy and Garry, JJ.

MacVean, Lewis, Sherwin & McDermott, P.C.,
Middletown (Paul T. McDermott of counsel), for appellant.
Law Office of James P. Harris, Goshen (James P.
Harris of counsel), for respondent.
MEMORANDUM AND ORDER

Lahtinen, J.
Appeal from an order of the Supreme Court (Meddaugh, J.), entered August 12, 2008 in Sullivan County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff was a rear seat passenger in a car owned and operated by defendant that left the road and rolled over in an August 2003 accident. She was treated in the emergency room on the day of the accident and, thereafter, sought treatment from various healthcare providers with her problems primarily focusing on low back pain. She subsequently commenced this action and, following disclosure, defendant moved for summary judgment asserting that plaintiff had not suffered a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court granted the motion. Plaintiff appeals.
Plaintiff has not argued on appeal that defendant did not satisfy her initial burden and, thus, the issue before us is whether plaintiff submitted sufficient evidence to raise a triable issue of fact (see Weller v Munson, 309 AD2d 1098, 1098-1099 [2003], lv dismissed and denied 2 NY3d 782 [2004]). Further, plaintiff has limited her serious injury argument on appeal to the categories of permanent consequential limitation and significant limitation of use.
"[I]n order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" (John v Engel, 2 AD3d 1027, 1029 [2003]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Hildenbrand v Chin, 52 AD3d 1164, 1165 [2008]). The medical evidence must be sufficient "to differentiate serious injuries from mild or moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [2005]). Proof of a herniated disc arising from an automobile accident together with an expert's designation of a significant reduction in range of motion related to the disc injury can be sufficient to raise a factual issue as to serious injury (see Pommells v Perez, 4 NY3d 566, 577 [2005]; Dooley v Davey, 21 AD3d 1242, 1244 [2005]; Martin v Fitzpatrick, 19 AD3d 954, 956 [2005]; Durham v New York E. Travel, 2 AD3d 1113, 1114-1115 [2003]). However, even in the presence of proof of a herniated disc and reduced range of motion, summary judgment may be appropriate "when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition" (Pommells v Perez, 4 NY3d at 572).
Here, an MRI taken within days of the accident revealed a herniated disc at L5-S1 and plaintiff's chiropractor, James Romano, stated in his affidavit that the disc injury was related to the accident. Romano had treated plaintiff from October 2003 to October 2004 and then examined her again in March 2008. Romano conducted a series of range of motion tests at the March 2008 examination and stated that, as to plaintiff's lumbar spine, her "range of motion flexion is 0-60-70ø causing moderate pain along the lower lumbar musculature (normal flexion is 0-90ø)."
Romano's range of motion findings, however, are based solely on his March 2008 test. Plaintiff acknowledged injuring her back in 2006 while helping a friend move and that injury was, in part, the reason she was hospitalized in 2006. Romano does not set forth her limitations prior to the 2006 accident, despite having treated plaintiff for a year starting shortly after the subject car accident, and before the unrelated 2006 back injury [FN1]. This is particularly problematic since several medical reports from another health care provider noted in 2004 that plaintiff's "[l]umbosacral flexion is within normal limits."
Further fatal to plaintiff's claim is that Romano opined that her condition resulted in a "mild to moderate" disability. The potential restrictions on her activities set forth by Romano are not nearly as acute as those that we found sufficient to raise a factual issue in Secore v Allen (27 AD3d 825, 827-828 [2006]). His affidavit and report do not contain the characterization of a severe injury as was set forth in Pommells v Perez (4 NY3d at 576). The record fails to provide sufficient evidence to raise a factual issue as to whether plaintiff sustained a serious injury and, as such, defendant's motion was properly granted.
Footnotes

Footnote 1:  Although Romano attached to his affidavit his office notes from his earlier treatment of plaintiff, those notes are largely illegible.

American Guarantee & Liability Insurance Company v. State National Insurance Company, Inc.


Melito & Adolfsen, P.C., New York (Ignatius John Melito of
counsel), for appellant.
Max W. Gershweir, New York, for respondents.
Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered December 18, 2008, summarily dismissing the complaint, unanimously affirmed, with costs.
Plaintiff, the excess insurance carrier, sought a declaration that the coverage disclaimer by defendant State National, the primary insurer, for reimbursement of funds advanced by the excess insurer on the insured's behalf to settle the underlying personal injury action, was untimely as a matter of law, and that the primary insurer's policy exclusion was inapplicable and ambiguous. The court properly found that the primary insurer's "construction" exclusion was unambiguous and applied to the activities being performed by the injured party at the time of his accident. The exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case (see Continental Cas. Co. v Rapid-Am. Corp., 80 NY2d 640, 652 [1993]). The court also properly found that the protections of Insurance Law § 3420[d] were inapplicable to one insurer's claim for reimbursement from another insurer (see Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 91-92 [2005]).
Schoneboom v B.B. King Blues Club & Grill



The Law Offices of Christopher P. DiGiulio, P.C., New York
(William Thymius of counsel), for appellants.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Steven
H. Rosenfeld of counsel), for respondent.
Order, Supreme Court, New York County (Marcy Friedman, J.), entered on February 26, 2009, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiffs are barred by the doctrine of primary assumption of the risk from seeking damages for the injuries plaintiff David Schoneboom suffered when an identified person in a group of slam dancers slammed into him. After observing the open and obvious slam dancing from a safe vantage point, and fully appreciating the risk of colliding with a slam dancer, plaintiff nonetheless elected to place himself in close proximity to that activity, thereby assuming the risk that resulted in his injuries (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Turcotte v Fell, 68 NY2d 432, 437-439 [1986]; Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247-248 [2008], affd 10 NY3d 889 [2008]).
Plaintiff's remaining arguments are unavailing.
Auchampaugh v Syracuse University



Calendar Date: September 14, 2009
Before: Mercure, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ.


Nixon Peabody, L.L.P., Buffalo (Susan C. Roney of
counsel), for defendant and third-party plaintiff-appellant.
Costello, Cooney & Fearon, P.L.L.C., Syracuse
(Maureen G. Fatcheric of counsel), for third-party defendant-
respondent.
MEMORANDUM AND ORDER


Mercure, J.P.
Appeal from an order of the Supreme Court (Garry, J.), entered June 2, 2008 in Tompkins County, which denied a motion by defendant General Electric International, Inc. for summary judgment on its contractual indemnification claim against third-party defendant.
The underlying facts are more fully set forth in a prior decision of this Court in which, modifying a Supreme Court order that granted partial summary judgment to defendants in this action asserting claims sounding in negligence and pursuant to Labor Law §§ 200, 240 (1) and § 241 (6), we dismissed the complaint in its entirety (57 AD3d 1291 [2008]). Defendant General Electric International, Inc. (hereinafter GE) now appeals from an order denying its motion for summary judgment on its contractual indemnification claim against plaintiff's employer, third-party defendant, International Chimney Corporation, which GE had hired to perform work at its steam cogeneration facility in the City of Syracuse, Onondaga County. We affirm.
"[A]n owner [may] bring a third-party claim against an injured worker's employer in only two circumstances: where the injured worker has suffered a 'grave injury' or the employer has entered into a written contract to indemnify the owner" (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 365 [2005]; see Workers' Compensation Law § 11). Here, there is no claim that plaintiff suffered a grave injury and, thus, GE may proceed only if International Chimney entered into a written agreement to indemnify it. Whether a particular written contract satisfies Workers' Compensation Law § 11 involves a two-part inquiry. "First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of section 11" (Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 432 [2005]). International Chimney asserts that the parties' dispute centers only on the first prong of the inquiry. In that regard, we note that "in many instances the issue of whether or when an indemnification agreement came into being in the absence of a signed document will present a question of fact to be resolved by the trier of fact" (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d at 370).
In moving for summary judgment, GE proffered the parties' unsigned purchase order that purported to incorporate additional terms and conditions, and a document setting forth "standard terms and conditions of purchase," including an indemnification clause, that GE sent to International Chimney after work commenced but prior to plaintiff's accident. Assuming without deciding that GE established a prima facie case of entitlement to summary judgment, we conclude that International Chimney raised questions of fact regarding whether the parties agreed to be bound by the indemnification clause.
International Chimney provided an affidavit from its project manager indicating that GE's representative had led him to believe that the purchase order was the only relevant document, as well as the testimony of the GE representative that he was not aware of any contract beyond the purchase order. Moreover, while the purchase order incorporates by reference "[t]he terms and conditions of Year 2000 document - PDF-009 Revision 0 . . . in addition to our standard terms and conditions," the document that was later sent by GE to International Chimney - and which contained the indemnification clause at issue - is entitled "P28A-AL-0003 Rev. A., Standard Terms & Conditions of Purchase." International Chimney did not act in conformity with the requirements of this document; it did not, for example, procure the insurance required by the document or sign and return the document, as requested. Furthermore, GE does not point to any evidence of the parties' past practice that would permit an inference that they agreed to the terms of the document and indemnification clause in the record before us. Under these circumstances, we conclude that Supreme Court properly denied GE's motion for summary judgment on its claim for contractual indemnification (see Staub v William H. Lane, Inc., 58 AD3d 933, 935 [2009]; Miller v Mott's Inc., 5 AD3d 1019, 1020 [2004]; Brinson v Kulback's & Assoc., 296 AD2d 850, 852 [2002]; see also Spiegler v Gerken Bldg. Corp., 35 AD3d 715, 717 [2006]; Gilbert v Albany Med. Ctr., 21 AD3d 677, 678 [2005]; see generally Baun v Project Orange Assoc., L.P., 26 AD3d 831, 835 [2006]).
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.
ORDERED that the order is affirmed, with costs.
Amex Assurance Company, as subrogee of Beresid v Kulka



Richard Becker, New York, N.Y., for appellants Devin M.
Kulka and Jack Kulka.
BrÉa Yankowitz, P.C., Floral Park, N.Y. (Glenn G. Gunsten
and Patrick J. BrÉa of counsel), for
appellant Harriet Kulka.
Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of
counsel), for appellant New York
Institute of Technology.
Gerard D. De Santis, Carle Place, N.Y. (Marc G. De Santis of
counsel), for respondent Amex
Assurance Company, as subrogee of Craig A.
Beresid and Stacy Beresid.
Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip,
N.Y. (Frank A. Tinari of counsel), for
respondents Craig A. Beresid and
Stacy Beresid.


DECISION & ORDER
In a consolidated action, inter alia, to recover insurance benefits allegedly paid to the plaintiff Amex Assurance Company's insureds, the defendants Devin M. Kulka and Jack Kulka appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated August 18, 2008, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendant Harriet Kulka separately appeals, as limited by her brief, from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted against her, and the defendant New York Institute of Technology separately appeals, as limited by its brief, from so much of the same order as denied its motion 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 denying that branch of the motion of the defendants Devin M. Kulka and Jack Kulka which was for summary judgment dismissing the complaint insofar as asserted against the defendant Jack Kulka and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs appearing separately and filing separate briefs payable by the defendants Harriet Kulka and New York Institute of Technology.
The defendant New York Institute of Technology (hereinafter NYIT) provided the defendant Harriet Kulka (hereinafter Harriet) with a motor vehicle for her use as an employee. It is undisputed that, on May 29, 2004, Harriet and her husband, the defendant Jack Kulka (hereinafter Jack), were out of town. It is also undisputed that, on that date, the infant defendant Devin M. Kulka (hereinafter Devin), Jack's son and Harriet's stepson, was operating this vehicle when he was involved in a collision. The vehicle he was driving collided with a vehicle owned by the plaintiff Stacy Beresid and operated by the plaintiff Craig A. Beresid (hereinafter together the Beresids), who were insured by the plaintiff Amex Assurance Company (hereinafter Amex). Amex allegedly paid to its insureds damages sustained as a result of this accident.
"Vehicle and Traffic Law § 388 creates a strong presumption' (Matter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d 567, 568) of permissive use which can only be rebutted with substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's express or implied permission" (Talat v Thompson, 47 AD3d 705, 705; see Matter of New York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704). " The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use'" (Talat v Thompson, 47 AD3d at 706, quoting Matter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d at 568; see Matter of General Acc. Ins. Co. v Bonefont, 277 AD2d 379). Additionally, " [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury'" (Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172, 177, quoting St. Andrassy v Mooney, 262 NY 368, 372).
Under the circumstances presented here, the defendants failed to sufficiently rebut the strong presumption pursuant to Vehicle and Traffic Law § 388 that Devin was operating the vehicle with the permission of the owner, NYIT, and its employee, Harriet (see Talat v Thompson, 47 AD3d 705; Cherry v Tucker, 5 AD3d 422). Accordingly, the Supreme Court properly determined that NYIT and Harriet failed to establish their prima facie entitlement to judgment as a matter of law.
Jack, however, was neither the owner of the vehicle, nor the owner's employee to whom the vehicle had been entrusted. Accordingly, the presumption of permissive use by Devin pursuant to Vehicle and Traffic Law § 388 had no application as to him. In the absence of any such presumption, and in the absence of any evidence that Jack entrusted Devin with the vehicle or gave him permission to operate it, Jack and Devin demonstrated Jack's prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against him. In opposition, Amex and the Beresids failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Jack and Devin's motion which was for summary judgment dismissing the complaint insofar as asserted against Jack.
Jack and Devin's contention that Amex failed to provide proof of damages is not properly before this Court, as that issue was not addressed in the order appealed from (see Popular Fin. Servs., LLC v Williams, 50 AD3d 660, 661; Morris v Queens-Long Is. Med. Group, P.C., 43 AD3d 394, 395). We note that this contention was the sole basis on which Devin relied in claiming entitlement to summary judgment dismissing the complaint insofar as asserted against him.
In light of our determination, we need not reach the remaining contentions of Amex.
DILLON, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.
Nechadim Corp. v C.J.P. Abstract, LLC


Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y.
(Helmut Borchert and Mark Kruger of counsel), for appellant-
respondent.
Solomon Rosengarten, Brooklyn, N.Y., for respondent-appellant.


DECISION & ORDER
In an action to recover damages for the negligent failure to timely record a mortgage, the defendant Commonwealth Land Title Insurance Company appeals from so much of an order of the Supreme Court, Richmond County (Fusco, J.), dated January 6, 2009, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summary judgment on the issue of liability against the defendant Commonwealth Land Title Insurance Company.
ORDERED that the order is reversed insofar as appealed from, on the law, and the cross motion of the defendant Commonwealth Land Title Insurance Company for summary judgment dismissing the complaint insofar as asserted against it is granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant Commonwealth Land Title Insurance Company, payable by the plaintiff.
On July 25, 2006, the plaintiff loaned money to the nonparties Carpet Network, Inc., and T.M.Z. Enterprises, Inc. In return, the plaintiff received a mortgage on two properties, one located in Orange County and one located in Sullivan County. At the closing of the loan, the plaintiff gave the mortgage documents to the defendant C.J.P. Abstract, LLC (hereinafter CJP), which, according to an affidavit of the attorney who represented the plaintiff at the closing, the plaintiff had retained "for the purpose of doing the title work in connection with the mortgage and to record the mortgage." On the same day as the closing, the defendant Commonwealth Title Insurance Company (hereinafter Commonwealth) issued the plaintiff a title insurance policy insuring only the lien on the Orange County property.
After CJP failed to record the mortgage in Sullivan County until July 12, 2007, the plaintiff commenced this action against CJP and Commonwealth to recover damages for the negligent failure to timely record the mortgage in Sullivan County. CJP defaulted in the action. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Commonwealth, and Commonwealth cross-moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion and cross motion, finding that there were triable issues of fact. We reverse the order insofar as appealed from by Commonwealth and affirm the order insofar as cross-appealed from.
Commonwealth established, prima facie, that the agency relationship between Commonwealth and CJP was limited to the solicitation, production, and issuance of title insurance policies underwritten by Commonwealth, and that CJP's failure to timely record the mortgage thus cannot be attributed to Commonwealth (see Ford v Unity Hosp., 32 NY2d 464, 472-473; Lucas v Kensington Abstract LLC, 20 Misc 3d 1135[A]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 325). Accordingly, while the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Commonwealth, the court should have granted Commonwealth's cross motion for summary judgment dismissing the complaint insofar as asserted against it.
In light of our determination, we need not reach Commonwealth's remaining contention.
FISHER, J.P., COVELLO, DICKERSON and LOTT, JJ., concur.
Town of Hempstead v. East Coast Resource Group, LLC


Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F.
Korman, and Merril S. Biscone of counsel), for appellant.
Litchfield Cavo LLP, New York, N.Y. (Edward Fogarty, Jr., of
counsel) for respondent.


DECISION & ORDER
In an action to recover damages for personal injuries and wrongful death, the Town of Hempstead appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), dated April 1, 2008, which, upon an order of the same court (McCormack, J.), dated July 10, 2007, inter alia, denying its motion for summary judgment on its cause of action (formerly a cross claim) against the defendant, East Coast Resource Group, LLC, to recover damages for breach of an insurance procurement provision, and upon a jury verdict, is in favor of the defendant, East Coast Resource Group, LLC, dismissing its cause of action.
ORDERED that the judgment is reversed, on the law, with costs, the cause of action of the Town of Hempstead against the defendant, East Coast Resource Group, LLC, to recover damages for breach of an insurance procurement provision is reinstated, the Town of Hempstead's motion for summary judgment on the cause of action is granted, and the order dated July 10, 2007, is modified accordingly.
On November 21, 2005, 37-year-old Martin J. Alduino was killed when he was struck by a "pay loader" which an employee of the Town of Hempstead (hereinafter the Town) was operating at an agricultural waste transfer station in Oceanside, New York. The pay loader was pushing landscaping waste into a collection area, to be loaded into tractor trailers supplied and operated by the East Coast Resource Group, LLC (hereinafter East Coast), pursuant to a waste hauling agreement with the Town (hereinafter the Agreement).
Kimberly Alduino, as administratrix of Alduino's estate, and individually, commenced this action to recover damages for personal injuries and wrongful death against the Town, East Coast, and the operator of the pay loader. The Town asserted, inter alia, a cross claim against East Coast to recover damages for breach of a provision to procure insurance in the Town's own name, as an additional insured under East Coast's policy (hereinafter the Provision).
By order dated July 10, 2007, the Supreme Court, inter alia, denied the Town's motion for summary judgment on the cross claim. The court found that issues of fact existed as to whether the Town's alleged negligence in connection with the subject accident arose from activities which were contemplated under the Agreement. Alduino's claims were settled and the caption of the action was amended to reflect that the Town's cross claim against East Coast was converted into a cause of action, and the Town is the plaintiff and East Coast is the defendant. After a trial, the jury found that the accident did not arise out of an activity contemplated under the Agreement.
"Agreements to purchase and maintain insurance, . . . are valid and enforceable" (Darowski v High Meadow Coop. No. 1, 239 AD2d 541, 542, citing Kinney v Lisk Co., 76 NY2d 215; Schumacher v Lutheran Community Servs., 177 AD2d 568, 569). A contractor may properly obtain insurance to insure an owner against its own acts of negligence, in contrast to an indemnification provision, which insures an owner against the imposition of vicarious liability based on another party's negligence (see Kinney v Lisk Co., 76 NY2d at 215; McGill v Polytechnic Univ., 235 AD2d 400).
The Town established its prima facie showing of entitlement to summary judgment by demonstrating that East Coast failed to satisfy a contractual obligation to obtain insurance in the Town's name as an additional insured (see Tkacs v Dominion Constr. Corp., 278 AD2d 486; McGill v Polytechnic Univ., 235 AD2d 400; Keelan v Sivan, 234 AD2d 516, 517; Roblee v Corning Community Coll., 134 AD2d 803).
East Coast failed to raise a triable issue of fact in opposition to the Town's prima facie showing. Unlike the separate indemnity provision which the Agreement also contained, the insurance procurement provision did not limit East Coast's obligation to procure insurance for the Town to claims "which might arise in connection with th[e] Agreement" (cf. Watters v R.D. Branch Assoc., LP, 30 AD3d 408; Taylor v Doral Inn, 293 AD2d 524). Accordingly, the judgment must be reversed and the Town's motion for summary judgment on the cause of action must be granted.
The Town's remaining contention is academic.
WSTC Corp., d/b/a Vibe v. National Specialty Insurance Company


Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York,
N.Y. (Richard E. Lerner of counsel), for appellant.
Friedman, Harfenist, Kraut & Perlstein, LLP, Lake Success,
N.Y. (Neil Torczyner of counsel), for
respondent.

DECISION & ORDER
In an action for a judgment declaring that the defendant National Specialty Insurance Company is obligated to defend and indemnify WSTC Corp., d/b/a Vibe, in an underlying action entitled Mello v Green, pending in the Supreme Court, Nassau County, under Index No. 8435/06, that defendant appeals from an order of the Supreme Court, Nassau County (Spinola, J.), entered June 30, 2008, which denied its motion for summary judgment, in effect, declaring that it is not so obligated, and granted that branch of the plaintiff's cross motion which was for summary judgment declaring that it is obligated to defend WSTC Corp., d/b/a Vibe, in the underlying action.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
In May 2006 Nicholas Mello commenced an action (hereinafter the underlying action) against, among others, the plaintiff WSTC Corp., d/b/a Vibe (hereinafter Vibe), to recover damages for injuries he sustained while a patron at Vibe's premises. Vibe's insurance carrier, the defendant National Specialty Insurance Company (hereinafter NSIC), disclaimed coverage on the ground that the claims in the underlying action arose out of an assault and, thus, fell within the assault and battery exclusions of the commercial general liability insurance policy it had issued to Vibe. Thereafter, Vibe commenced the instant action against NSIC and Mello for a judgment declaring that NSIC is obligated to defendant and indemnify it in the underlying action.
NSIC moved for summary judgment, in effect, declaring that it is not obligated to defend and indemnify Vibe in the underlying action, and Vibe cross-moved for summary judgment declaring that NSIC is so obligated. Vibe argued, among other things, that it was not bound by the assault and battery exclusions since the necessary exclusion forms were never executed on its behalf. The Supreme Court denied NSIC's motion, and granted that branch of Vibe's cross motion which was for summary judgment declaring that NSIC is obligated to defend Vibe in the underlying action. The court, applying the general rule that the duty to defend is broader that the duty to indemnify, determined that the first cause of action asserted in the complaint in the underlying action sounded in negligence, which was covered by the policy and, therefore, NSIC was required to defend Vibe in the underlying action. The court held that any determination as to the applicability of the assault and battery exclusions would be premature. We reverse.
"An exclusion for assault and/or battery applies if no cause of action would exist but for' the assault and/or battery" (Anastasis v American Safety Indem. Co., 12 AD3d 628, 629, quoting Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347, 353; see U.S. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821, 823). Here, the claims of negligence in the underlying action arise out of an assault and, thus, fall within the assault and battery exclusions (see Mark McNichol Enters. v First Fin. Ins. Co., 284 AD2d 964, 965; Dudley's Rest. v United Nat'l Ins. Co., 247 AD2d 425, 426; Sphere Drake Ins. Co. v 72 Ctr. Ave. Corp., 238 AD2d 574, 576). If those exclusions are applicable, NSIC would have neither an obligation to defend Vibe in the underlying action, nor an obligation to indemnify it (see e.g. Marina Grand, Inc. v Tower Ins. Co. of N.Y., 63 AD3d 1012, 1014; Haines v New York Mut. Underwriters, 30 AD3d 1030; Essex Ins. Co. v Young, 17 AD3d 1134, 1136). However, the Supreme Court did not address Vibe's contention that the assault and battery exclusions were rendered inoperative because the exclusion forms were allegedly never executed on its behalf, a determination necessary to the disposition of both NSIC's motion and the entirety of Vibe's cross motion. Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for a determination regarding the applicability of the assault and battery exclusions in light of Vibe's contention, and for a new determination on the motion and cross motion thereafter.