Leo v. N.Y. Cent. Mut. Fire Ins. Co.

• Decision Date: 22 October 2014
• Citation: 51 Misc.3d 171,20 N.Y.S.3d 842
• Parties: Mark A. LEO, Plaintiff v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

51 Misc.3d 171
20 N.Y.S.3d 842

Mark A. LEO, Plaintiff
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant.

Supreme Court, Oneida County, New York.

Oct. 22, 2014.

20 N.Y.S.3d 844

Anthony A. Murad, Esq., counsel for Plaintiff.

Paul A. Hurley, Esq., counsel for Defendant.

BERNADETTE T. CLARK, J.

Decision, Order and Judgment on Motions

51 Misc.3d 172

Before the Court is a motion for summary judgment brought by New York Central Mutual Fire Insurance Company, Defendant, against Plaintiff Mark Leo in an underlying declaratory judgment action involving the issue of insurance coverage. The Defendant is seeking a determination that it is not required to indemnify the Plaintiff. The Plaintiff has filed a cross-motion for summary judgment seeking a determination that the Defendant is obligated to indemnify the Plaintiff.

Considered on the motion were the following papers: Defendant's notice of motion dated January 9, 2014, Defendant's attorney's affirmation dated January 9, 2014, along with attached exhibits A–F, Defendant's attorney's reply affirmation dated April 7, 2014, Plaintiff's notice of cross-motion dated March 25, 2014, Plaintiff's affidavit dated March 26, 2014, and attached exhibits A–D, Plaintiff's counsel's affidavit dated March 25, 2014, along with attached exhibit A, Plaintiff's counsel's memorandum of law dated March 24, 2014, and Plaintiff's counsel's reply affidavit dated May 16, 2014.

This case has a unique history. On or about May 20, 2005, the Plaintiff was involved in a violent altercation with Anthony J. Sciortino. In the course of the altercation, the Plaintiff struck Sciortino in the head and neck with a baseball bat, and he subsequently died. The Plaintiff was indicted for this incident for Manslaughter in the 2nd degree. At trial he asserted the defense of justification, and was acquitted of the charge. On or about April 28, 2006, the Sciortino Estate brought a wrongful death personal injury action against the Plaintiff. Plaintiff's insurer initially disclaimed coverage and defense, although ultimately it did provide a defense for the Plaintiff. However, it has steadfastly denied any duty to indemnify the Plaintiff.

As a result of the disclaimer, on or about October 2, 2006 the Plaintiff commenced a declaratory judgment action, seeking among other things a declaration by the Court that the Defendant is required to afford indemnity to the Plaintiff in the underlying personal injury action, pursuant to the terms of the

51 Misc.3d 173

policy and contract of insurance in issue. On or about November 29, 2010, the wrongful death/personal injury action came on for trial before the Hon. Norman I. Siegel. Prior to commencement of the trial, the parties negotiated a settlement and a stipulation was placed on the record, and memorialized in a written stipulation and order, signed by the parties on February 22, 2011, and "So Ordered" by Justice Siegel on April 5, 2011.

The stipulation settled the wrongful death action for $50,000.00. No findings were made as to theory upon which the award was made. The stipulation further called for the Plaintiff to assign his declaratory judgment action to the Estate, and that counsel for the Estate would prosecute the matter on behalf of the Estate.

20 N.Y.S.3d 845

The stipulation further called for the following:

"5. If it is found after the final determination by way of any and all appeals in [the declaratory judgment action] that Mark A. Leo's conduct on May 20, 2005 was negligent then New York Central Mutual Fire Insurance Company agrees to pay its full policy limits of Two Hundred Thousand Dollars ($200,000.00) to the Estate of Anthony J. Sciortino, Jr., deceased.

6. If it is found after final determination by way of any and all appeals [in the declaratory judgment action] that Mark A. Leo's conduct on May 20, 2005 was intentional, New York Central Mutual Fire Insurance Company will pay nothing, leaving the Estate of Anthony J. Sciortino, Jr., deceased only with Fifty Thousand Dollars ($50,000.00) payable by Mark A. Leo."

Thereafter, on April 18, 2011 Justice Siegel recused and the case was transferred to this Court.

Facts

The Plaintiff has testified twice with regard to these events, first in his criminal trial on or about April 28, 2006, and again in his deposition in the declaratory judgment action on June 11, 2013. In his criminal trial, the Plaintiff testified to the events leading up to the altercation with Sciortino, and then described the specific incident. As to the physical altercation, he testified that Sciortino, while holding a metal bar, swung it at Plaintiff, who ducked but was grazed by the bar on the top of his head. Sciortino then swung again, but missed the Plaintiff who had ducked. The Plaintiff then swung the baseball

51 Misc.3d 174

bat he was holding and hit Sciortino in the back of the head. He testified that he swung the bat in order to defend himself and the bat came down on his head. Sciortino then continued to swing at him, and the Plaintiff hit him a second time in the back of the neck, after which Sciortino went down. Plaintiff testified that prior to the confrontation, he had retrieved a baseball bat from his garage and put it in the back of his vehicle, although he "didn't intend to have to use that bat." He took it because he "felt the need that something was going to happen and I needed to—I didn't want to be caught empty handed." Further, he testified that "Well, I say I was petrified for my life when this thing happened. When he—I just had a gut feeling that this guy was incredibly irate and upset about something and I just had a feeling that something was going to happen."

In the declaratory judgment case deposition, the Plaintiff stated somewhat similarly that he got the bat because he "just wanted to have something to defend [himself] in case—my initial intent was to talk to him, you know, and—to try to reason with him, but I wasn't gonna be, you know—I wanted to make sure I had some way to protect myself." He testified that he was not getting the bat to hit Sciortino with it. He testified that as the two approached each other, he said "Tony, don't" or something to that effect, but Sciortino kept coming and then he swung a metal pipe (later identified as a metal bar) at him. The Plaintiff ducked and was grazed on the top of his head. Sciortino then swung the pipe back. The Plaintiff then hit Sciortino with the bat in the head or the back of the neck. The Plaintiff hit him twice in the head area. The Plaintiff admitted that "obviously if somebody was hit in the head with a baseball bat, obviously they would be hurt." He also acknowledged that "if somebody was hit hard enough—obviously if somebody's hit hard enough with [a bat], it would—there's always a possibility it could kill them."

20 N.Y.S.3d 846

On examination by the Estate's attorney, Plaintiff stated that he had the bat in his hands because he "just wanted to make sure that I was able to defend myself." Further, during the incident, he was trying to defend himself, and he did not intend to hurt or injure Sciortino. In particular, he testified that at the time he was swinging the bat, it was not his intent to hurt or kill Sciortino, and that he was just defending himself. On further examination by the Defendant's counsel, Plaintiff said "it certainly was not his intent to hit [Sciortino] in the head

51 Misc.3d 175

with the baseball bat," although he admitted that he did hit him in the head with the bat. In response to a question as to whether there was anything which prevented him from hitting Sciortino in the arms with the bat, Plaintiff responded, "To be honest with you, I didn't even think about where—or if I even had to hit him."

On further examination by the Estate's counsel, in answering leading questions, the Plaintiff indicated that he just swung the bat and that he did not intend to swing and hit him in the head, and also that when he was swinging the bat, it was not his intention to cause harm. Finally, counsel asked Plaintiff if he was swinging for him to get away, and the Plaintiff answered "Correct."

Any analysis of coverage must start with the policy language. In the policy at issue, Section II—Liability Coverages A. Coverage E—Personal Liability states as follows:

"If a claim is made or a suit is brought against an insured' for damages because of bodily injury' or property damage' caused by an occurrence' to which this coverage applies, we will:

1. Pay up to our limit of liability for the damages for which an insured' is legally liable. Damages include prejudgment interest awarded against as insured."

Further the term "occurrence" is defined as an "accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. Bodily injury,' or b....