Monter v. CNA Ins. Companies

• Decision Date: 07 March 1994
• Citation: 608 N.Y.S.2d 692,202 A.D.2d 405
• Parties: Gerald MONTER, et al., Appellants, v. CNA INSURANCE COMPANIES, etc., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 692

608 N.Y.S.2d 692

202 A.D.2d 405

Gerald MONTER, et al., Appellants, v. CNA INSURANCE COMPANIES, etc., et al., Respondents, et al Defendants.

Supreme Court, Appellate Division Second Department.

March 7, 1994.

Kwiatkowski & Ryan, Floral Park (John E. Ryan and John O. Brennan, of counsel), for appellants.

Ahmuty, Demers & McManus, Albertson (Ann Gangi and Frederick B. Simpson, of counsel), for respondent CNA Ins. Companies (Continental Cas. Co.).

Rebore, Thorpe & Pisarello, Lindenhurst (Bartholomew J. Rebore, of counsel), for respondent Atlantic Mut. Companies.

Before SULLIVAN, J.P., and JOY, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that the defendants CNA Insurance Companies and Atlantic Mutual Companies are obligated to indemnify the plaintiffs in an underlying wrongful death action pursuant to policies of liability insurance, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (O'Shaughnessy, J.), entered November 19, 1991, which, inter alia, denied the plaintiffs' motion for summary judgment, granted the cross motions of the defendant insurance carriers for summary judgment, and declared that they are not required to defend or indemnify the plaintiffs.

ORDERED that the order and judgment is affirmed, with one bill of costs.

The plaintiff Gerald Monter, the president of Holiday Management Associates, Inc. (hereafter Holiday) was criminally charged, inter alia, with instructing his chauffeur, Lawrence A. Masotti, a Holiday employee, to confront and attack Winthrop A. Frost, another Holiday employee. The criminal complaint alleged that Frost was shot and killed. Monter was acquitted of all charges, except one count relating to the bribery of Masotti. In the underlying wrongful death action, Paula Frost, as Administrator of Frost's estate, alleges that, as a result of an argument, Monter instructed Masotti to hire unidentified men to break Frost's legs, but that they shot and killed him instead.

The critical question here is whether the harm that resulted to the decedent Frost from the assaults allegedly committed on him by the plaintiffs' employees could have been other than harm "intentionally caused" within the meaning of the policy exclusions (see, Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 159, 581 N.Y.S.2d 142, 589 N.E.2d 365). This court must look to the pleadings in the wrongful death action and limit its examination to the nature of the plaintiffs' conduct (see, Allstate Ins. Co. v. Mugavero, supra). Even if Monter denies these allegations, this court must assume, for the purpose of determining coverage, that what is alleged actually happened (see, Allstate Ins. Co. v. Mugavero, supra). Here, the complaint alleges that Monter conspired with Masotti and instructed him to recruit others to confront the decedent and to "intentionally, physically and maliciously attack [Frost] with great force and violence that should result in a beating of [Frost] including the breaking of both of his legs", that the plan went awry, and that the decedent's death ensued. The pleadings allege acts, which, if proven, would constitute, at the least, a conspiracy to commit an intentional assault on, if not the death of, the decedent. The plaintiffs argue that they are entitled to defense and indemnification...