M v. Harleysville Ins. Co. of N.Y.

• Decision Date: 31 January 2018
• Docket Number: 2:16-cv-05916 (ADS)(AYS)
• Parties: STRIKER SHEET METAL II CORP., Plaintiff, v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, Defendant.
• Court: U.S. District Court — Eastern District of New York

STRIKER SHEET METAL II CORP., Plaintiff, v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, Defendant.

2:16-cv-05916 (ADS)(AYS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 31, 2018

MEMORANDUM OF DECISION & ORDER

APPEARANCES:

Churbuck Calabria Jones & Materazo, P.C.

Counsel for the Plaintiff

43A East Barclay Street

Hicksville, NY 11801

By: Robert B. Churbuck, Esq., Of Counsel

Riker Danzig Scherer Hyland & Perretti LLP

Counsel for the Defendant

500 Fifth Avenue, 49^th Floor

New York, NY 10110

By: Lance J. Kalik, Esq.,

Peter M. Perkowski, Jr., Esq., Of Counsel

SPATT, District Judge:

On August 29, 2016, plaintiff Striker Sheet Metal II Corp. (the "Plaintiff" or "Striker") initiated this declaratory judgment action against the defendant, Harleysville Insurance Company of New York ("Harleysville" or the "Defendant") in the Supreme Court of New York, Nassau County. Harleysville subsequently removed this action to this Court on October 24, 2016. The complaint alleges that Harleysville wrongly denied Striker coverage under a general liability policy for claims arising from an on-the-job injury to one of Striker's employees. See Docket Entry ("DE") 1.

Presently before the Court is a motion for summary judgment filed by the Defendant on July 11, 2017, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 56, and a cross-motion for summary judgment filed by the Plaintiff on August 15, 2017, pursuant to FED. R. CIV. P. 56.

For the reasons set forth herein, the Defendant's motion for summary judgment is granted in its entirety and the Plaintiff's motion for summary judgment is denied.

I. BACKGROUND

A. THE FACTUAL BACKGROUND

1. The Accident

On November 1, 2011, Striker, a sheet metal contractor, executed a subcontract (the "Subcontract") with Trystate Mechanical, Inc. ("Trystate"), a HVAC contractor, to "furnish all material and labor for a complete sheet metal system" for a construction project at the Public Theater, located at 425 Lafayette Street, New York, NY (the "Construction Site"). Defendant's Local Rule 56.1(a) Statement of Undisputed Facts ("Defendant's 56.1 Statement") ¶ 2.

On January 10, 2012, Striker employee Randal Fiore ("Fiore") allegedly suffered injuries during the course of his employment at the Construction Site. Id. ¶ 3. In his deposition, Fiore testified that, while delivering HVAC ductwork to the Construction Site, he removed a hand truck from a Striker-owned truck, and helped load the hand truck with the ductwork. Id. ¶ 4. With the hand truck filled with ductwork, Fiore maneuvered the hand truck to a ramp, and in the process of moving the hand truck up the ramp, Fiore tripped on "construction debris" and fell. Id. According to two Striker employees who were present, Kevin Spaun and Brian Zeller, as well as an Injuryand Illness Incident Report filed with the Occupational Safety and Health Administration, Fiore was injured as the hand truck was being removed from Striker's truck. See DE 15, Ex. B; DE 14, Ex. D at 45:8-46:4; id. Ex. E at 50:8-51:13.

On January 11, 2012, Fiore was treated by Dr. Richard Obedian for his alleged back injuries, which he claims were sustained in the incident the previous day. A medical questionnaire which is signed by Fiore asks the undersigned to briefly describe the nature of the work injury. The response to that question was, "[r]emoving a hand cart off of the truck at work and placing it down once I tried to stand up I dropped to my knees uncontrollably with not being able to stand for 5-10 mins at 6:35am Mon morning." DE 14, Ex. C.

2. The Harleysville Policy & Coverage Disclaimers

From April 1, 2011 to April 1, 2012, Striker was insured by Harleysville under a commercial general liability policy, specifically number GL00000029124J (the "Harleysville Policy"). Id. Ex. F; Defendant's 56.1 Statement ¶ 1. In relevant part, the Harleysville Policy states:

SECTION I -COVERAGES

COVERAGE A BODILY INJURY ANO PROPERTY DAMAGE LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages even if the allegations of the "suit" are groundless, false, or fraudulent.

* * *

2. Exclusions

This insurance does not apply to:

* * *

g. Aircraft, Auto Or Watercraft

"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading".

* * *

11. "Loading or unloading" means the handling of property:

a. After it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft, or "auto";

b. While it is in or on an aircraft, watercraft, or "auto";

c. While it is being moved from an aircraft, watercraft, or "auto" to the place where it is finally delivered;

but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft, or "auto".

DE 14, Ex. F. The Harleysville Policy was in effect at the time of Fiore's accident. Id.

On July 19, 2012, Insight Companies, Inc., Striker's insurance agent filed a Notice of Occurrence/Claim with Harleysville, notifying them of the accident. See DE 14, Ex. G; Defendant's 56.1 Statement ¶ 5. On July 25, 2012, Harleysville sent a letter to Striker acknowledging receipt of the claim. See DE 14, Ex. H.

On July 26, 2012, Harleysville sent Striker a disclaimer letter informing Striker that the Harleysville Policy did not cover claims for bodily injury to employees, and stating that the "auto exclusion" applied to the instant situation. See DE 14, Ex. I; Defendant's 56.1 Statement ¶ 6. This disclaimer letter was sent to Striker seven days after Harleysville received notice of the accident.

On August 9, 2012, the insurance carrier for Trystate sent a letter to Striker, copying Harleysville, stating that pursuant to the Subcontract, Striker was obligated to defend and indemnify Trystate against any future claims brought by Fiore concerning the accident. See DE15, Ex. H. On August 28, 2012, Trystate's insurance carrier sent Striker a second demand letter, with a copy sent to Harleysville. See id. Ex. I.

On September 6, 2012, Harleysville sent an email to Striker asking for additional information about that accident, including,

[1.] Was the truck that was being unloaded owned, leased, rented or loaned to Striker? [2.] If one of the above, please provide the year, make and model of the truck. [3.] Was the truck that was being unloaded a supplier's truck? If so, do you know the name of the supplier? [4.] What is the name of your foreman that was on that job and his/her contact number?

DE 14, Ex. J. The next day, Striker responded: "Unloading the truck, yes the truck belonged to Striker info enclosed. Henny Spaun was the foreman, however was not present at the time of the accident. Our driver Brian Zeller ... handed [Fiore] a hand truck turned his back and [Fiore] was on the ground." Id. That same day, Harleysville informed Striker that it would "be denying the claim under Striker's GL policy due to an auto exclusion." Id. On September 17, 2012, Harleysville sent a second disclaimer letter to Striker, disclaiming coverage based on the auto exclusion. See Defendant's 56.1 Statement ¶ 7; DE 14, Ex. K.

B. THE PROCEDURAL BACKGROUND

On February 27, 2014, Fiore filed a personal injury action against Westerman Construction Company, Inc., Westerman Construction Management and Consulting, and Eurotech Construction Corp., in the Supreme Court of New York, Nassau County, seeking damages for the injuries he allegedly sustained in the accident on January 10, 2012 (the "Underlying Action"). See Defendant's 56.1 Statement ¶ 8; DE 14, Ex. L. The complaint in the Underlying Action asserted causes of action for negligence and violations of New York Labor Law §§ 200, 240(1) and 241(6). Defendant's 56.1 Statement ¶ 16. In August 2014, Westerman Construction Company ("Westerman") filed a third-party complaint against Striker in the Underlying Action allegingclaims of contractual indemnity and common law contribution and indemnity. See Defendant's 56.1 Statement ¶ 9; DE 14, Ex. M.

On December 1, 2014, Twin City Fire Insurance Company ("Twin City"), Striker's commercial automobile insurance carrier, agreed to defend Striker in the Underlying Action pursuant to a reservation of rights. See Defendant's 56.1 Statement ¶ 10; DE 14, Ex. N. On March 5, 2015, Twin City issued a second reservation of rights letter to Striker, stating in pertinent part, "[o]ur investigation reveals that Mr. Fiore allegedly was injured while moving/carrying a hand truck." See Defendant's 56.1 Statement ¶ 11; DE 14, Ex. O.

On December 1, 2015, Striker's counsel sent Harleysville an email, which contained Fiore's verified responses to Westerman's Bill of Particulars. DE 14, Ex. P; DE 15, Exs. S, T.

As mentioned above, on August 29, 2016, Striker filed a declaratory judgment action against Harleysville in the Supreme Court of New York, Nassau County. See DE 1. On October 24, 2016, Harleysville removed the instant action to this Court. Four days later, Harleysville filed an answer to the instant complaint. See DE 6.

II. DISCUSSION

A. STANDARD OF REVIEW

1. FED. R. CIV. P. 56

Pursuant to Rule 56, a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir. 2013); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). A dispute is genuine if the "evidence is such that a reasonable jury could return averdict for the nonmoving party." Anderson v....