Hansard v. Fed. Ins. Co.

• Decision Date: 01 February 2017
• Citation: 46 N.Y.S.3d 163,147 A.D.3d 734,2017 N.Y. Slip Op. 00633
• Parties: Thomas C. HANSARD, Jr., respondent, v. FEDERAL INSURANCE COMPANY, appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 734

46 N.Y.S.3d 163

2017 N.Y. Slip Op. 00633

Thomas C. HANSARD, Jr., respondent,

v.FEDERAL INSURANCE COMPANY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 1, 2017.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, NY (Katherine E. Tammaro of counsel), for appellant.

Franklin N. Meyer, Esq., P.C., New York, NY, for respondent.

RANDALL T. ENG, P.J., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ.

In an action for a judgment declaring that the defendant is obligated under the Directors & Officers Liability and Entity Liability Coverage Section of Policy Number 8234–3351 to defend the plaintiff in an underlying action entitled Coley v. Vannguard Urban Improvement Association, Inc.,

commenced in the United States District Court for the Eastern District of New York, under Case No. 12–Civ–5565, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (F.Rivera, J.), dated September 5, 2014, which, upon a decision of the same court also dated September 5, 2014, denied its converted motion for summary judgment declaring that it is not obligated to defend the plaintiff in the underlying action, granted the plaintiff's cross motion for summary judgment declaring that the defendant is obligated to defend him in the underlying action, and declared that the defendant is obligated to defend the plaintiff in the underlying action under the Directors & Officers Liability and Entity Liability Coverage Section of Policy Number 8234–3351.

ORDERED that the order and judgment is reversed, on the law, with costs, the defendant's converted motion for summary judgment is granted, the plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Supreme Court, Kings County, for the entry of an amended judgment declaring that the defendant is not obligated to defend the plaintiff in the underlying action under the Directors & Officers Liability and Entity Liability Coverage Section of Policy Number 8234–3351.

In 2012, an action was commenced in the United States District Court for the Eastern District of New York against, among others, Vannguard Urban Improvement Association, Inc. (hereinafter Vannguard), and Thomas C. Hansard, Jr., the Chairman of Vannguard's Board of Directors. The plaintiffs in that action (hereinafter the underlying action) alleged that they were employees of Vannguard and that Vannguard and the other defendants had, among other things, violated the federal Fair Labor Standards Act (29 U.S.C. § 201 et seq. ) and the New York Labor Law with respect to payment of wages and earned vacation benefits. The plaintiffs later amended their complaint to add allegations that the defendants had retaliated against them for commencing the underlying action.

Vannguard was the policyholder of an insurance policy (Policy Number 8234–3351; hereinafter the policy) issued by the Federal Insurance Company (hereinafter FIC). As relevant here, the policy contained a "Directors & Officers Liability and Entity Liability Coverage Section" (hereinafter the D&O section), which included coverage for "Wrongful Act[s]," as that term was defined in the D&O section of the policy. The D&O section, however, contained an exclusion "for any employment-related Wrongful Act." The D&O section did not contain a definition of "employment-related," and that term was not defined elsewhere in the policy. The policy also contained an "Employment Practices Liability Coverage Section" (hereinafter the EPLC section). It is undisputed that Hansard was an "insured" under both the D&O section and the EPLC section.

Hansard sought a defense in the underlying action from FIC, but FIC, in reliance on the exclusion for "any employment-related Wrongful Act," declined to defend him. Hansard responded by commencing this action against FIC, in which he seeks a judgment declaring that FIC is obligated to defend him in the underlying action under the D&O section of the policy. Hansard does not seek a declaration that FIC is obligated to defend him under the EPLC section of the policy.

FIC made a pre-answer motion to dismiss the complaint under CPLR 3211(a)(1) and (7). Hansard opposed the motion and requested that it be converted to one for summary judgment. Hansard also cross- moved for summary judgment declaring that FIC is obligated to defend him in the underlying action. The Supreme Court, upon converting FIC's motion to one for summary judgment, denied FIC's converted motion, granted Hansard's cross motion, and declared that FIC is obligated to defend Hansard in the underlying action. FIC appeals.

The general rule as to an insurer's duty to defend an insured is easily stated: "the duty of the insurer to defend the insured rests solely on whether the complaint alleges any facts or grounds which bring the action within the protection purchased" (Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310, 486 N.Y.S.2d 873, 476 N.E.2d 272 ; see Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013 ). Accordingly, in determining whether the insurer has a duty to defend, it is necessary to determine what a policy covers and whether any facts or grounds alleged in the complaint are within that coverage. Courts must examine the language of the policy and "construe [it] in a way that ‘affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect’ " (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 221–222, 746 N.Y.S.2d 622, 774 N.E.2d 687, quoting Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 493, 549 N.Y.S.2d 365, 548 N.E.2d 903 ; see Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d at 264, 920 N.Y.S.2d 763, 945 N.E.2d 1013 ). The unambiguous provisions of the insurance policy must be given their "plain and ordinary meaning"; their interpretation is a question of law (White v. Continental Cas. Co., 9 N.Y.3d 264, 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019 ).

Likewise, the issue of whether a provision is ambiguous is a question of law (see Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 ; W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 ). "[T]he test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy" (Matter of Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 326–327, 645 N.Y.S.2d 421, 668 N.E.2d 392 ). "A contract is unambiguous if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ " (Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166, quoting Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 ).

As a general matter, when the provisions of the policy are ambiguous, the ambiguity must be construed in favor of the insured and against the insurer (see White v. Continental Cas. Co., 9 N.Y.3d at 267, 848 N.Y.S.2d 603, 878 N.E.2d 1019 ; United States Fid. & Guar. Co. v. Annunziata, 67 N.Y.2d 229, 232, 501 N.Y.S.2d 790, 492 N.E.2d 1206 ), especially when the ambiguity is "found in an exclusionary clause" (Ace Wire & Cable Co. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398, 469 N.Y.S.2d 655, 457...