Richner Dev., LLC v. Burlington Ins. Co., 2009 NY Slip Op 32682(U) (N.Y. Sup. Ct. 11/2/2009)
| Decision Date | 02 November 2009 |
| Docket Number | Action #3.,Motion Seq. No: 01.,Action #1.,021810/07.,Motion Seq. No: 02.,Action #2. |
| Citation | 2009 NY Slip Op 32682 |
| Parties | RICHNER DEVELOPMENT, Plaintiff, v. THE BURLINGTON INSURANCE COMPANY, Defendant. FOUR SEASONS ROOFING, INC., Plaintiff, v. THE BURLINGTON INSURANCE COMPANY, Defendant. 2 ENDO BOULEVARD LLC, Plaintiff, v. THE BURLINGTON INSURANCE COMPANY, Defendant. |
| Court | New York Supreme Court |
FAUST GOETZ SCHENKER & BLEE, New York, New York, Attorney for Plaintiff/Action #3.
MEYER, SUOZZI, ENGLISH & KLEIN, Garden City, New York.
LAW OFFICES OF RIEGLER & BERKOWITZ, Melville, New York, Attorney for Defendant.
FORD, MARRIN, ESPOSITO, WITMEYER & GLESER LLP, New York, New York.
In action # 3, the motion by the plaintiff, 2 Endo Boulevard, LLC (hereinafter referred to as "2 Endo") for an order granting summary judgment on the grounds that the defendant, The Burlington Insurance Co. (Hereinafter referred to as "TBIC"), must defend and indemnify 2 Endo as a potential additional insured on a policy issued by TBIC is denied for the reasons set forth herein.
The cross-motion by TBIC for summary judgment is granted for the reasons set forth herein.
Four Seasons Roofing, Inc (hereinafter referred to as FSR) was at the time of the incident a roofing subcontractor. FSR had obtained a commercial general liability policy for TBIC for the period May 17, 2005 to May 17, 2006. On May 5, 2005, FSR entered into a contract with Richner, a general contractor/contract manager, on the property known as 2 Endo Boulevard, Garden City, N.Y. (the "premises"). In its policy with TBIC, FSR, the insured, named Richner and the owner of the premises, 2 Endo as additional insureds under the policy. On October 25, 2005, FSR hired Frank Giampetruzzi ("Giampetruzzi") as a roofing laborer to work at the premises. On October 28, 2005, Giampetruzzi was injured by an electrical transformer and allegedly sustained third and fourth degree bums. FSR contacted its broker, Baldon Group, Inc. ("Baldon"). Baldon informed TBIC of the injury on November 11, 2005 (see Exhibit K annexed to TBIC's motion) or less than 20 days after the incident. On November 14, 2005, TBIC issued a notice of disclaimer (see Exhibit R annexed to TBIC's cross motion) citing the exclusion as to an employee's injury while on the job, and incidents such as the Giampetruzzi incident would not be covered.
2 Endo commenced this action for declaratory relief as to TBIC. 2 Endo contests the position of TBIC's disclaimer under the cross liability exclusion in the policy with 2 Endo. 2 Endo notes Giampetruzzi was an employee of FSR, the insured, not 2 Endo, an additional insured. 2 Endo states that the policy of TBIC should provide coverage to 2 Endo as an additional insured and that the TBIC should not be able to exclude liability to 2 Endo in the cross liability provision of the policy. 2 Endo also contends the TBIC policy with FSR was, in part, ambiguous.
FSR obtained a blanket insurance policy to cover 2 Endo as an additional insured. It defines an "insured party" to include any person or organization whom FSR was required to add as an additional insured on FSR's policy under a written contract or written agreement. This clearly would include 2 Endo.
TBIC notes its policy with FSR excludes employees of the insured ("FSR") and any additional insured such as 2 Endo. Thus, if an employee of the insured (FSR) or the additional insured sustains a bodily injury, FSR and the additional insured (such as 2 Endo) could not avail themselves of the protection of the TBIC policy since Workers Compensation for the injured employee would be the remedy.
When interpreting a contract, words and phrases used by the parties must be given their plain meaning (DDS Partners, LLC v. Celenza, 6 AD3d 347).
Although an exclusion from insurance coverage must be specific and clear to be enforced (Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304), and any ambiguity in an exclusionary clause must be construed most strongly against the insurer (Ace Wire & Cable Co. v. Aetna Cas. & Surety Co., 60 NY2d 390), an unambiguous policy provision must be accorded its plain and ordinary meaning (Sanabria v. American Home Assurance Co., 68 NY2d 866). Clearly, a court may not disregard the plain meaning of the language of a policy in an attempt to find an ambiguity (Acorn Ponds v. Hartford Ins. Co., 105 AD2d 723).
A policy which excludes coverage to any employee of any named insured unambiguously applies to bar coverage to an additional insured (here, 2 Endo) against a claim by the primary insured's employee (here, FSR) (Guachichulav Laszlo N. Tauber Assoc., LLC, 37 AD3d 760; Tardy v. Morgan Guaranty Trust Co. of New York, 213 AD2d 296). The plain meaning of the exclusion was to relieve TBIC of liability when an insured or additional insured was sued or indemnification was requested for damages arising out of a bodily injury to an employee sustained in the course of employment. The exclusionary provision precluded coverage herein to 2 Endo. The insurance policy in issue stated that if an employee of FSR or any of the other additional insureds (such as 2 EndO) sustained a bodily injury, Worker's compensation was the solution, not TBIC's policy with FSR.
2 Endo contends that there are "public policy" considerations to the FRS policy. However, public policy considerations alone are not sufficient to permit a finding of coverage in an insurance contract when the plain language of the contract cannot fairly be read to otherwise provide that coverage (see State, Department of Environmental Probationv Sign Trading International, Inc., 130 N.J. 51).
2 Endo opines that if the liability policy does not "cover" the injury of FSR's employee, Giampetruzzi, and thus any potential liability 2 Endo might be exposed to, then the policy is "illusory" (see Wright v. Evanston Ins. Co., 14 AD3d 505). This court must disagree. As noted, the policy was written...
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