New York Cent. Mut. Fire Ins. Co. v. Heidelmark
| Decision Date | 28 February 1985 |
| Citation | 108 A.D.2d 1093,485 N.Y.S.2d 661 |
| Parties | NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Elizabeth J. HEIDELMARK, Defendant, and George J. Albert, Jr., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bouck, Holloway, Kiernan & Casey, Albany (Mary Ann D. Allen, Albany, of counsel), for appellant.
Alan P. Joseph, Albany, for respondent.
Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from an order of the Supreme Court at Special Term, entered April 17, 1984 in Albany County, which, inter alia, denied plaintiff's motion for summary judgment.
In a personal injury suit commenced by Elizabeth J. Heidelmark against George J. Albert, Jr., the first and third through sixth causes of action allege that Albert caused Heidelmark bodily injury as a result of willful, intentional conduct. In brief, the first cause of action alleges that on or about September 15, 1982, Albert assaulted, battered and raped her. These very same allegations are repeated and realleged in the second cause of action, after which it is then alleged "the acts and conduct of * * * were committed recklessly and/or negligently". The remaining causes of action advert to intentional injuries assertedly inflicted by Albert on Heidelmark on other occasions, namely in April through July of 1982.
After receiving the complaint, Albert notified New York Central Mutual Fire Insurance Company (New York Mutual) and requested that it defend him. New York Mutual had issued Albert a homeowners policy and a personal umbrella liability supplemental policy containing personal liability coverage; the ad damnum clause in Heidelmark's complaint, being in an amount greater than the homeowners coverage, triggered applicability of the umbrella policy. Both policies excluded from coverage bodily injury intended by the insured. Reading Heidelmark's complaint as seeking recovery solely based on theories of intentional tort, New York Mutual denied coverage, refused to defend Albert and instituted this proceeding for a declaratory judgment absolving it of any obligation to defend or indemnify Albert with respect to Heidelmark's complaint. * Because of the allegations of negligence in the second cause of action, Special Term denied New York Mutual's motion for summary judgment and granted Albert partial summary judgment, declaring that New York Mutual had a duty to defend in the Heidelmark suit.
We affirm. To be relieved of the duty to defend, an insurer must demonstrate that the claims alleged against its insured, on the face of the complaint, are solely and...
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