Lopez v. Rutgers Cas. Ins. Co.

• Decision Date: 18 January 2018
• Docket Number: 16–CV–1845(SJF)(ARL)
• Citation: 298 F.Supp.3d 503
• Parties: Gerver LOPEZ, Plaintiff, v. RUTGERS CASUALTY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of New York

298 F.Supp.3d 503

Gerver LOPEZ, Plaintiff,

v.RUTGERS CASUALTY INSURANCE COMPANY, Defendant.

16–CV–1845(SJF)(ARL)

United States District Court, E.D. New York.

Signed January 18, 2018

Kenneth J. Halperin, David M. Hoffman, David M. Schwarz, Wingate Russotti Shapiro & Halperin LLP, New York, NY, for Plaintiff.

Steven Verveniotis, David M. Cassidy, Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY, for Defendant.

ORDER

SANDRA J. FEUERSTEIN, United States District Judge

I. Introduction

On or about March 7, 2016, plaintiff Gerver Lopez ("plaintiff") commenced this action against defendant Rutgers Casualty Insurance Company ("defendant") in the Supreme Court of the State of New York, County of Nassau ("the state court"), seeking to convert an unsatisfied judgment entered in the state court on October 21, 2015 against, inter alia , # 1 Realty and Development, Inc. ("# 1 Realty"), in an action entitled Lopez v. Coldwell Banker Meadow Realty, Inc., et al. , Index No 13022/2007 ("the underlying action"), into a judgment against defendant pursuant to New York State Insurance Law § 3420. On April 15, 2016, defendant filed a notice of removal pursuant to 28 U.S.C. § 1441(a), removing the action to this Court on the basis that this Court has original subject matter jurisdiction under 28 U.S.C. § 1332(a) based upon the diversity of citizenship of the parties. Pending before the Court is defendant's motion pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking summary judgment dismissing plaintiff's claims against it in their entirety. For the reasons set forth below, defendant's motion is granted to the extent set forth herein.

II. Background

A. Factual Background¹

1. The Complaint

The complaint alleges, inter alia , (i) that on or about May 22, 2007, plaintiff was injured while working at premises located at 1605 Dale Avenue, East Meadow, New York ("the Premises"); (ii) that in the underlying action, plaintiff recovered a judgment against, inter alia , # 1 Realty; and (iii) that # 1 Realty is an additional insured under a policy of insurance issued by defendant to Cavallaro Contracting, Inc. ("Cavallaro"). (Def. 56.1, ¶¶ 2–3).

2. The Underlying Action

On or about July 27, 2007, plaintiff commenced the underlying action against, inter alia , # 1 Realty and Cavallaro seeking to recover damages for personal injuries he allegedly sustained on May 22, 2007 when he fell from a scaffold while working at a construction project at the Premises. (Def. 56.1, ¶¶ 6–7).

By decision and order dated November 20, 2009, the state court in the underlying action found, inter alia , (i) that Cavallaro had been hired by # 1 Realty to act as the general contractor for the construction project; (ii) that on the date of the accident, plaintiff was employed by Lauterio Arevelo, a subcontractor hired by Cavallaro to do work at the Premises; and (iii) that # 1 Realty was liable to plaintiff for the injuries he sustained on May 22, 2007. (Def. 56.1, ¶¶ 8–9).

Following an inquest before the state court on August 5, 2014, judgment was entered in the underlying action against, inter alia , # 1 Realty and Cavallaro in the amount of twelve million thirty-one thousand, four hundred three dollars and forty-four cents ($12,031,403.44). (Def. 56.1, ¶ 10).

3. The Policy

Defendant issued Commercial General Liability insurance policy number SKP 3106931 12 to Cavallaro, effective for the period from April 29, 2007 to April 29, 2008 ("the Policy"), (Def. 56.1, ¶ 11), which provided liability limits of one million dollars ($1,000,000.00) per occurrence and a general aggregate limit of two million dollars ($2,000,000.00). (Id. )

The coverage provided by the Policy is limited to individuals or entities that qualify as either an insured or an additional inured thereunder. (Def. 56.1, ¶ 12). The Policy provides, in pertinent part:

SECTION II—WHO IS AN INSURED

1. If you are designated in the Declaration as:

a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.

b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business.

c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insured, but only with respect to their duties as your managers.

d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders.

e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees.

2. Each of the following is also an insured:

a. Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business....

(Affidavit of Stephen A. Reilly ["Reilly Aff."], Ex. A).

Cavallaro is the only insured identified in the Policy itself, (Def. 56.1, ¶¶ 14, 45), although plaintiff contends: (i) that a certificate of insurance names # 1 Realty as an additional named insured, (Plf. 56.1, ¶ 14; see also Declaration of David M. Schwarz, Esq., in Opposition to Defendant's Motion ["Schwarz Decl."], Ex. A); and (ii) that the Policy "must be read in conjunction with" that certificate of insurance. (Plf. 56.1, ¶ 45). Indeed, certificates of insurance, dated April 1, 2007, i.e. , twenty-eight (28) days before the inception of the Policy, were issued by the Yvette Korell Agency, the broker for Cavallaro, that identify the Policy and indicate, in relevant part, that # 1 Realty is an additional insured thereunder. (Def. 56.1, ¶ 46). Those certificates of insurance contain the following standard language in the top right hand corner:

"This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below."

(Id. , ¶ 48). Plaintiff contends, however, that that language is "modified by law and principles of estoppel." (Plf. 56.1, ¶ 48). In any event, it is undisputed that # 1 Realty is not referenced anywhere in the Policy, (Def. 56.1, ¶ 21), and that the April 1, 2007 certificates of insurance are the only evidence suggesting that # 1 Realty is an insured under the Policy. (Id. , ¶ 47).

When the Policy was issued, it contained an endorsement, form CG 20 10 03 97, entitled "Additional Insured—Owners, Lessees or Contractors—Scheduled Person or Organization," which provides, in pertinent part:

"Who Is An Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured."

(Reilly Aff., Ex. C). The Schedule contained in that endorsement is blank. (Def. 56.1, ¶ 17). The endorsement further provides that if no entry appears in the Schedule, "information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement." (Reilly Aff., Ex. C). The declarations of the Policy only identify Cavallaro as the insured thereunder. (Def. 56.1, ¶ 18).

A form attached to the Policy, GLDEC 0696, entitled "Commercial General Liability Additional Coverage Declarations," provides additional coverage declarations information and identifies 346 Broadway, Carle Place, New York 11514, as an insured location under the Policy. (Def. 56.1, ¶ 19). However, the accident at issue in the underling action did not occur at that address; it occurred at 1605 Dale Avenue, East Meadow, New York, which is not an insured location under the Policy. (Id. , ¶ 20).

The Policy identifies Buckingham Badler Associates, Inc. ("Buckingham") as defendant's agent. (Def. 56.1, ¶ 22). The retail broker involved in the placement of the Policy was the Yvette Korell Agency. (Id. , ¶ 23). According to Stephen A. Reilly, who is employed by defendant as a claims examiner and is responsible for handling the claims asserted by plaintiff against defendant in this action, (Reilly Aff., ¶ 1), the Yvette Korell Agency is not defendant's agent. (Id. , ¶ 20). Although plaintiff "disagrees" and "will contend" that the Yvette Korell Agency was an agent of defendant, (Plf. 56.1 at p. 6 and ¶ 24), "by reason of apparent agency and for other reasons," (id. , ¶ 24), he cites to no admissible evidence in support of those contentions. (See Id. )

Attached to the Policy is the following endorsement, numbered RCG 00 06, entitled "Exclusion of Injury to Employees, Contractors and Employees of Contractors" ("Injury to Employees of Contractors Exclusion"):

This insurance does not apply to:

I. "bodily injury" to any "employee" of any insured arising out of or in the course of: a) Employment by any insured; or b) Performing duties related to the conduct of any insured's business;

II. "bodily injury" to any contractor or any "employee" of any contractor arising out of or in the course of the rendering or performing services of any kind or nature whatsoever by such contractor or "employee" of such contractor for which any insured may become liable in any capacity; or

III. Any obligation of any insured to indemnify or contribute with another because of damages arising out of such "bodily injury"; or

IV. "bodily injury" sustained by the spouse, child, parent[,] brother or sister of any "employee" of any insured, or of a contractor, or any "employe

...