Mount Vernon Fire Ins. Co. v. Creative Housing Ltd.

• Decision Date: 11 June 1996
• Parties: , 668 N.E.2d 404 MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff and Counter-Defendant, v. CREATIVE HOUSING LTD. et al., Defendants and Counter-Claimants et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 433

645 N.Y.S.2d 433

88 N.Y.2d 347, 668 N.E.2d 404

MOUNT VERNON FIRE INSURANCE COMPANY, Plaintiff and Counter-Defendant, v. CREATIVE HOUSING LTD. et al., Defendants and Counter-Claimants et al., Defendant.

Court of Appeals of New York.

June 11, 1996.

[88 N.Y.2d 348] Thurm and Heller, New York City (Michael A. Miranda, of counsel), for plaintiff and counter-defendant.

Beck & Ianuzzi, P.C., Mineola (Michael Majewski and Nicole Norris, of counsel), for defendants and counter-claimants.

[88 N.Y.2d 349] [668 N.E.2d 405] Fitzgerald & Fitzgerald, P.C., Yonkers (Brian J. Farrell, of counsel), for defendant.

OPINION OF THE COURT

SIMONS, Judge.

The United States Court of Appeals for the Second Circuit has certified this matter to us to settle important questions of law in this State respecting insurance coverage (see, 22 NYCRR 500.17). The questions arise from the following facts.

In April 1991, Lynette Hunter was criminally assaulted in an apartment building owned and managed by defendant Creative Housing Ltd. Hunter sued the owner, alleging negligent supervision, management and control of the premises. Creative Housing sought a defense and indemnification from its insurer, plaintiff Mount Vernon Fire Ins. Co., under a policy in which Mount Vernon had agreed to pay "those sums that the insured shall become legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Mount Vernon instituted this diversity action in Federal court, seeking a declaratory judgment that it had no duty to defend or indemnify Creative Housing in Hunter's civil lawsuit because its policy excluded coverage for claims based on assault and battery. The exclusion provided:

"It is agreed that no coverage shall apply under this policy for any claim, demand or suit based on Assault and Battery, and Assault and Battery shall not be deemed an accident whether or not committed by or at the direction of the insured."

The District Court dismissed Mount Vernon's action, holding that the exclusion was ambiguous and should, under settled rules of law, be construed against the insurer and in favor of the insured. The court noted first that reasonable minds could differ on whether the language "based on assault" excluded coverage for negligence claims arising from assaults, and that it was unclear whether Hunter's claims against Creative Housing were based on assault or on negligent maintenance of the premises. It also found the exclusion ambiguous when, as happened here, it was applied to an intentional tort committed by a third party wholly unrelated to the insured. Accordingly, the court held that the policy covered Creative Housing in Hunter's suit.

On appeal to the United States Court of Appeals for the Second Circuit, Mount Vernon maintained that the District Court's holding was in direct conflict with New York law recently established in U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 623 N.Y.S.2d 834, 647 N.E.2d 1342. In Val-Blue we held an exclusion clause containing language identical to the language found in this policy was unambiguous and precluded coverage of negligence claims. We applied a "but-for" test to determine coverage in such cases: if no cause of action would exist but for the assault, the claim is based on assault and the exclusion applies. Mount Vernon contended that under Val-Blue the District Court order had to be reversed.

The Second Circuit certified the matter to us seeking answers to the following questions:

"1. Is the language 'based on' narrower than the language 'arising out of' when used in an insurance policy and does the Val-Blue decision establish that neither is ambiguous?

"2. When a third party rather than an insured's employee perpetrates an assault, is the basis of the victim's claim against the insured assault or the negligent failure to maintain safe premises?"

We accepted the certified questions and now answer both in favor of plaintiff Mount Vernon by reaffirming our prior holdings that the phrases "based on" and "arising out of", when used in insurance policy exclusion clauses, are unambiguous and legally indistinguishable, and that when a third party perpetrates an assault, the basis of the victim's claim for negligent failure to maintain safe premises against the insured is assault.

I

The Federal courts' uncertainty with respect to the first certified question arises from two prior New York decisions in negligent entrustment cases.

Lalomia v. Bankers & Shippers Ins. Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018, affd. on opn. below, 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724, involved a claim against a father after the motorized bicycle his son was operating collided with decedent's automobile. The father sought coverage under his homeowners' insurance policy for the claim asserted against him. The Appellate Division determined that a clause in the father's policy which excluded coverage for damages "directly related to the 'ownership, maintenance, operation and use' " of a vehicle did not preclude coverage of a negligent entrustment claim arising from the accident. (35 A.D.2d at 117, 312 N.Y.S.2d 1018.) We affirmed.

More recently, in Cone v. Nationwide Mut. Fire Ins. Co., 75 N.Y.2d 747, 551 N.Y.S.2d 891, 551 N.E.2d 92, under facts substantially similar to those in Lalomia, we adopted the Lalomia reasoning and held that a claim of negligent entrustment of an automobile was not excluded from coverage under a similar motor vehicle exclusion in defendant's homeowners' policy. Moreover, we held that any minor variation in the language between "arising out of", used in the policy exclusion in Cone, and the "based directly on" language, used in the policy exclusions in Lalomia, was "too insignificant to permit varying legal consequences" (id., at 749, 551 N.Y.S.2d 891, 551 N.E.2d 92).

Those decisions were followed by U.S. Underwriters Ins. Co. v. Val-Blue Corp., supra. Val-Blue involved a claim by an off-duty police officer shot by a nightclub's security guard when he tried to use the club's telephone on business. He sued the nightclub on a claim based upon negligent hiring, supervision and training. In contrast to the...