Noble Constr. Grp. LLC v. Farm Family Cas. Ins. Co.

• Decision Date: 08 February 2021
• Docket Number: INDEX NO. 525653/2019
• Citation: 2021 NY Slip Op 30412 (U)
• Parties: NOBLE CONSTRUCTION GROUP LLC, MP 145 WS LESSEE LLC, 10 HURON FS CONDO LLC 19 INDIA FEE OWNER LLC, and URBAN DEVELOPMENT PARTNERS NEW YORK, LLC, Plaintiffs, v. FARM FAMILY CASUALTY INSURANCE COMPANY, Defendant
• Court: New York Supreme Court

2021 NY Slip Op 30412(U)

NOBLE CONSTRUCTION GROUP LLC, MP 145 WS LESSEE LLC, 10 HURON FS CONDO LLC 19INDIA FEE OWNER LLC, and URBAN DEVELOPMENT PARTNERS NEW YORK, LLC, Plaintiffs, v. FARM FAMILY CASUALTY INSURANCE COMPANY, Defendant

INDEX NO. 525653/2019

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8

RECEIVED: February 10, 2021

February 8, 2021

NYSCEF DOC. NO. 38

Decision and order

PRESENT: HON. LEON RUCHELSMAN

On May 9, 2016 an entity called Country Wide Masonry Corporation entered into a contract with plaintiff Noble Construction Group LLC, the construction manager, whereby Country Wide would perform masonry work at a construction site located at 145 West Street in Kings County. Country Wide purchased insurance from defendant Farm Family and named Noble as an additional insured. On September 4, 2018 Jamie Allacio an employee of Country Wide initiated a lawsuit pursuant to Labor Law §240(1) and related statutes against numerous defendants including Noble on the grounds he was injured at the construction site from a gravity related event. Noble sought coverage from Farm Family as an additional insured under the policy. Farm Family denied coverage. Thereafter, Noble initiated this lawsuit against Farm Family alleging Farm Family breached their contract in failing to defend and indemnify Noble in the lawsuit with Allacio. Further, the complaint seeks a declaratory judgement Farm Family is obligated to defend Noble.

Noble moved seeking to compel discovery. Farm Family cross-moved arguing the discovery request is moot since the complaint fails to state any claim. Farm Family seeks to dismiss the complaint on the grounds the Allacio complaint "fails to articulate any claims against the Plaintiffs that can reasonably be interpreted to allege that his claimed bodily injury was "caused, in whole or in part, by" any acts or omissions of CWM and, therefore, constitute potentially covered claims against Plaintiffs as putative additional insureds under the Farm Family Policies. As indicated, there are also no facts known to Farm Family that establish a reasonable possibility of coverage for Plaintiffs and Plaintiffs do not alleged in their coverage complaint that Farm Family is aware of such facts" (Affirmation in Support of Cross-Motion, ¶15). Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.

Conclusions of Law

"[A] motion to dismiss made pursuant to CPLR §3211[a][7] will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, thecomplaint states in some recognizable form any cause of action known to our law" (AG Capital Funding Partners, LP v. State St. Bank and Trust Co., 5 NY3d 582, 808 NYS2d 573 [2005]). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss (see, EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 799 NYS2d 170 [2005]).

As an additional insured the plaintiff must demonstrate that Allacio's injuries were caused by acts or omissions of Country Wide the insured party of Farm Family. Thus, to succeed upon a motion to dismiss the defendant must conclusively establish that there are no such acts or omissions committed by Country Wide. The complaint in the Allacia action does not allege any acts or omissions committed by Country Wide at all. The plaintiff argues that in any event Farm Family must provide coverage because there are extrinsic facts which demonstrate a possibility that coverage is applicable.

In Bacon Construction Company Inc., v. Arbella Protection Insurance Company Inc., 208 A3d 595 [Supreme Court of Rhode Island 2019] the court held that where a bodily injury exclusion prevented an injured party from suing the insured party, for example, where worker's compensation rules prevent such action,then the insurer could not be compelled to defend an action against an additional insured. As the court explained, the opposite result would mean the additional insured would be entitled to greater coverage than the insured party. The court concluded that the additional insured could only benefit from the insurance contracted where the injury resulted from the insured's acts or omissions whereby the insured committed some negligence.

However, that conclusion has been criticized. Thus, in Dhein v. Frankenmuth Mutual Insurance Company, 394 Wis2d 470, 950 NW2d 861 [Court of Appeals of Wisconsin 2020] the court held the additional insured was entitled to coverage regardless of whether the insured committed any negligence as long as the injury was caused by the acts or omissions of the insured.

Again, in Capital City Real Estate LLC v. Certain Underwriters at Lloyd's London, 788 F3d 375 [4^th Cir. 2015] the court noted the mere fact the underlying personal injury complaint did not contain any causes of action against the insured and did not even allege any wrongdoing on the part of the insured did not mean the additional insured was not entitled to coverage. The court explained...