Nationwide Mut. Fire Ins. Co. v. Oster

• Decision Date: 21 April 2021
• Docket Number: 2018–10832,Index No. 304/16
• Citation: 147 N.Y.S.3d 97,193 A.D.3d 951
• Parties: NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, appellant-respondent, v. Lisette M. OSTER, et al., respondents, Carol Daniele, etc., respondent-Appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 951

147 N.Y.S.3d 97

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, appellant-respondent,

v. Lisette M. OSTER, et al., respondents,Carol Daniele, etc., respondent-Appellant, et al., defendants.

2018–10832

Index No. 304/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 18, 2021

April 21, 2021

Robert L. Hartford and Seiger Gfeller Laurie LLP (Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. [Sarah M. Ziolkowski ], of counsel), for appellant—respondent.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, N.Y. (Denise M. Cossu of counsel), for respondent-appellant.

Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman and Merril S. Biscone of counsel), for respondent State Farm Mutual Insurance Company.

WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Lisette M. Oster in an underlying action entitled Daniele v. Oster, commenced in the Supreme Court, Putnam County, under Index No. 3481/11, and that the defendant State Farm Mutual Insurance Company is so obligated, the plaintiff appeals, and the defendant Carol Daniele cross-appeals, from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated June 28, 2018. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the defendant Lisette M. Oster in the underlying action and that the defendant State Farm Mutual Insurance Company is so obligated and dismissing the counterclaims asserted against it, and granted those branches of the motion of the defendant State Farm Mutual Insurance Company, and the separate cross motions of the defendants Lisette M. Oster and Carol Daniele, which were for summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant Lisette M. Oster in the underlying action, and that branch of the motion of the defendant State Farm Mutual Insurance Company which was for summary judgment declaring that it is not so obligated. The order, insofar as cross-appealed from, granted those branches of the motion of the defendant State Farm Mutual Insurance Company which were for summary judgment declaring that it is not obligated to defend or indemnify the defendant Lisette M. Oster in the underlying action and dismissing the cross claim asserted against it by the defendant Carol Daniele, and denied that branch of the cross motion of the defendant Carol Daniele which was for summary judgment declaring that the defendant State Farm Mutual Insurance Company is so obligated.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the plaintiff's motion which were for summary judgment, in effect, declaring that it is not obligated to defend or indemnify the defendant Lisette M. Oster in the underlying action and that the defendant State Farm Mutual Insurance Company is so obligated and dismissing the counterclaims asserted against it, and substituting therefor a provision granting those branches of the plaintiff's motion, (2) by deleting the provisions thereof granting those branches of the motion of the defendant State Farm Mutual Insurance Company, and the separate cross motions of the defendants Lisette M. Oster and Carol Daniele, which were for summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant Lisette M. Oster in the underlying action, and substituting therefor provisions denying those branches of the motion and the cross motions, (3) by deleting the provision thereof granting that branch of the motion of the defendant State Farm Mutual Insurance Company which was for summary judgment declaring that it is not obligated to defend or indemnify the defendant Lisette M. Oster in the underlying action, and substituting therefor a provision denying that branch of the motion, and (4) by deleting the provision thereof denying that branch of the cross motion of the defendant Carol Daniele which was for summary judgment declaring that the defendant State Farm Mutual Insurance Company is obligated to defend and indemnify the defendant Lisette M. Oster in the underlying action, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable to the plaintiff and the defendant Carol Daniele by the defendants Lisette M. Oster and State Farm Mutual Insurance Company, and the matter is remitted to the Supreme Court, Putnam County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to defend or indemnify the defendant Lisette M. Oster in the underlying action and that the defendant State Farm Mutual Insurance Company is so obligated.

On August 31, 2011, the defendant Lisette M. Oster (hereinafter Lisette) was driving north on Route 17 in a vehicle owned by the defendant Andrew J. Abbene, who had an automobile insurance policy issued by the defendant State Farm Mutual Insurance Company (hereinafter State Farm). Lisette had picked up Abbene's vehicle to bring it to Abbene's home for him. Lisette's daughter, the defendant Gabrielle M. Oster (hereinafter Gabrielle), followed in a vehicle owned by Lisette. Intending to proceed in the opposite direction, Lisette turned left onto a side street, turned around in a driveway, and pulled back to the intersection. Lisette stopped the vehicle at the corner, at an angle toward the southbound lane of Route 17, to wait for her daughter. She had her foot on the brake, but did not remember whether or not she put the car in park. When Lisette saw Gabrielle approaching the intersection, she waved to Gabrielle out the window to signal her to turn. Gabrielle started to turn left and collided with a motorcycle operated by Douglas P. Daniele, who died from his injuries.

The defendant Carol Daniele (hereinafter Daniele), as executrix of Douglas P. Daniele's estate and individually, commenced an action, inter alia, to recover damages for wrongful death entitled Daniele v. Oster, in the Supreme Court, Putnam County, under Index No. 3481/11 (hereinafter the underlying action), against Gabrielle, Lisette, and Abbene, alleging, among other things, that Lisette negligently signaled to Gabrielle that it was safe to turn, which act was a proximate cause of the accident. Lisette sought defense and indemnification from State Farm and also under a homeowner's insurance policy issued to her by the plaintiff, Nationwide Mutual Fire Insurance Company (hereinafter Nationwide). State Farm disclaimed coverage on the ground that the accident was not the result of the ownership, maintenance, or use of the Abbene vehicle. Nationwide disclaimed coverage based on a motor vehicle exclusion. Following trial, the jury determined that Lisette was liable for negligently signaling to Gabrielle that it was safe to turn, and that she bore 20% of the fault in the happening of the accident.

Nationwide commenced the instant action for a judgment declaring that it is not obligated to defend or indemnify Lisette in the underlying action, and that State Farm is so obligated. Lisette and Daniele asserted counterclaims against Nationwide, and cross claims against State Farm, for a judgment declaring that each insurer is obligated to provide coverage. Daniele additionally asserted a counterclaim and a cross claim alleging bad faith against the insurers. Upon motions and cross motions for summary judgment, in an order dated June 28, 2018, the Supreme Court determined that Lisette's wave to Gabrielle did not constitute "use or operation" of the Abbene vehicle. Thus, the court determined that Nationwide is obligated to defend and indemnify Lisette in the underlying action and State Farm is not so obligated. Nationwide appeals, and Daniele cross-appeals, from stated portions of the order.

" ‘The four corners of an insurance agreement govern who is covered and the extent of coverage’ " ( Hargob Realty Assoc., Inc. v. Fireman's Fund Ins. Co., 73 A.D.3d 856, 857, 901 N.Y.S.2d 657, quoting Sixty Sutton Corp. v. Illinois Union Ins. Co., 34 A.D.3d 386, 388, 825 N.Y.S.2d 46 ). "Courts must examine the language of the policy and ‘construe [it] in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect’ " ( Hansard v. Federal Ins. Co., 147 A.D.3d 734, 736, 46 N.Y.S.3d 163, quoting Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 221–222, 746 N.Y.S.2d 622, 774 N.E.2d 687 [internal quotation...