Rockland Exposition Inc. v. Great Am. Assurance Co.

• Decision Date: 29 September 2010
• Docket Number: Case No. 09–CV–5148 (KMK).
• Parties: ROCKLAND EXPOSITION, INC., Plaintiff,v.GREAT AMERICAN ASSURANCE CO., Defendant.
• Court: U.S. District Court — Southern District of New York

746 F.Supp.2d 528

ROCKLAND EXPOSITION, INC., Plaintiff,

v.GREAT AMERICAN ASSURANCE CO., Defendant.

Case No. 09–CV–5148 (KMK).

United States District Court, S.D. New York.

Sept. 29, 2010.

Jerold Oshinsky, Esq., Jenner & Block, LLP, Los Angeles, CA, for Plaintiff.Philip Furgang, Esq., Furgang & Adwar, LLP, West Nyack, NY, for Plaintiff.Jeff Imeri, Esq., Marshall, Dennehey, Coleman & Goggin, P.C., New York, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Rockland Exposition, Inc. (“Plaintiff,” or “REI”) brings this suit against its insurer Great American Assurance Company (“Defendant,” or “Great American.”). REI has been sued by the Association of Automobile Service Providers of New Jersey (“AASP”) in a dispute over competing trade shows. In the present suit, REI seeks a declaratory judgment that Great American must pay for REI's legal fees and costs in its litigation with AASP. Both parties have moved for summary judgment. Because REI did not notify Great American of the AASP suit in a timely fashion, the Court grants Great American's motion, and denies REI's motion.

I. Background

A. Facts

The essential facts of this case are not in dispute. Great American insured REI under a primary commercial general liability policy (No. GLP5688384–03) (the “Policy”), effective August 31, 2007 to August 31, 2008. (Def.'s Statement of Material Facts in Supp. of Def.'s Cross–Mot. for Summ. J. (“Def.'s 56.1”) ¶ 7).¹ The Policy obligated Great American “to defend [REI] against any ‘suit’ seeking ... damages” covered by the Policy. (Aff. of Lynn Damewood (“Damewood Aff.”) Ex. A, Commercial Gen. Liab. Coverage Form (“Commercial Gen. Liab. Form”) § I, Coverage B, 1.a.) However, the Policy required that REI “must see to it that” Great American is “notified as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” ( Id. § IV, 2.a.) The Policy further required that “[i]f a claim is made or ‘suit’ is brought against [REI], [REI] must ... see to it that [Great American] receive[s] written notice of the claim or ‘suit’ as soon as practicable.” ( Id. § IV, 2.b.) REI had to “[i]mmediately send” Great American “copies of any demands, notices, summonses or legal papers received in connection with the claim or ‘suit.’ ” ( Id. § IV, 2.c.(1).)

On June 26, 2008, AASP sued REI in the United States District Court for the District of New Jersey. (Def.'s 56.1 ¶ 4.) ² AASP faxed REI a copy of its complaint on June 27, 2008 ( id. If 12), and formally served REI on July 11, 2008 ( id. ¶ 14). REI should not have been surprised by this lawsuit because it received a letter from AASP's counsel dated March 27, 2008, which instructed REI not to “interfere” with AASP's trade show or to “mislead [ ] and confuse [ ] potential participants” of the AASP trade show “by creating a similar and therefore competing trade show, and using a name that is similar.” (Decl. of Jeffrey J. Imeri Ex. C, Letter from Laurence H. Olive, Counsel for AASP, to David McCarey, III, President of REI, March 27, 2008.) The letter concluded by threatening that “[s]hould there be any form of misconduct on your behalf, you and your company will be subject to a lawsuit including, but not limited to tortious interference with contractual rights, interference with business relations, trade name infringement, defamation, among other claims.” ( Id.)

REI contends that on August 19, 2008, it notified Great American of AASP's claim “by oral notification to its insurance intermediary, Marshall & Sterling.” (Pl.'s Resp. 3.) This notice occurred when Gregory Townsend (from Marshall & Sterling) happened to visit REI to provide REI renewal documents related to the Policy. (Pl.'s Mem. Ex. A–4 ¶ 5.) Mr. McCarey asserts that during that visit he and Mr. Townsend “discussed whether coverage would exist” for the AASP litigation (Pl.'s Mem. Ex. A–4 ¶ 5), and that McCarey asked Townsend “to determine whether REI's insurance policies provided coverage for the AASP action,” ( id. ¶ 7). McCarey does not allege that REI gave Marshall & Sterling anything in writing until September 30, 2008, when it provided Marshall & Sterling a copy of AASP's complaint. ( Id.) Great American received the complaint from Marshall & Sterling the next day, October 1, 2008. (Def.'s 56.1 ¶ 15.) Great American claims that this was the first it heard about REFs litigation with AASP, and REI does not dispute this. ( Id.) By letter dated October 29, 2008, Great American advised REI that it would not pay REI's legal fees for the AASP litigation because (1) REI did not comply with the Policy's notice provisions, (2) AASP's claims against REI were not covered by the Policy, and (3) even if AASP's claims did fall under the Policy's general language, coverage for them was precluded by a number of the Policy's specific exclusions. ( Id. ¶ 17.) ³ This litigation followed.

B. Procedural History

REI filed this suit on June 3, 2009. (Dkt. No. 1.) Great American answered on July 15, 2009. (Dkt. No. 7.) Both parties moved for summary judgment on November 23, 2009. (Dkt. Nos. 38–45.) The Court held oral argument on April 13, 2010. (Dkt. No. 46.) On May 3, 2010, the Court granted Plaintiff's request to file supplemental affidavits, and gave both parties the opportunity to file supplemental briefs. (Dkt. No. 48.) Both parties did so within the allotted time. (Dkt. Nos. 49, 50.)

II. Discussion

A. Standard of Review

Summary judgment should be granted where it is shown that there is “no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003); see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir.2006) (noting that a court must draw all reasonable inferences in the nonmovant's favor).

A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir.2005). “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (internal citations omitted). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n. 4 (2d Cir.2006) (“[S]peculation alone is insufficient to defeat a motion for summary judgment.”). A fact is material when “it might affect the outcome of the suit under governing law.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks omitted). At summary judgment, a court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F.Supp. 1205, 1212 (S.D.N.Y.1990). A court's goal should be to “isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548.

B. Analysis

As noted, the Policy required REI to notify Great American in writing “as soon as practicable” if a suit is brought against REI. (Commercial Gen. Liab. Form § IV, 2.b.) This is standard language “in liability policies that has been interpreted to require notice within a reasonable time under the circumstances.” Travelers Ins. Co. v. Volmar Const. Co., 300 A.D.2d 40, 752 N.Y.S.2d 286, 288 (2002); see also Olin Corp. v. Ins. Co. of N. Am., 966 F.2d 718, 723 (2d Cir.1992) (same). Under New York Law, “compliance with notice provisions in an insurance contract is a condition precedent to recovery,” U.S. Underwriters Ins. Co. v. Vittorioso, No. 97–CV–0075, 1999 WL 167716, at *2 (E.D.N.Y. Jan. 6, 1999), and “failure by the insured to comply with such requirements relieves the insurer of liability,” Utica Mut. Ins. Co. v. Fireman's Fund Ins. Co., 748 F.2d 118, 121 (2d Cir.1984).⁴ “Absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy.” Sec. Mut. Ins. Co. v. Acker–Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972).⁵ Thus, “an insured's failure to provide timely notice of a claim to its ... insurer is a complete defense to coverage, regardless of whether the carrier was prejudiced by the late notice.” Green Door Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 287 (2d Cir.2003); see also Am. Home Assurance Co. v. Int'l Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14, 16–17 (1997) ( “[I]t is settled law in New York that ‘[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy and the insurer need not show prejudice before it can assert the defense of noncompliance.’ ” (quoting Sec. Mut. Ins. Co., 340 N.Y.S.2d 902, 293 N.E.2d at 78)).⁶

“New York courts have held that the question whether notice was given within a reasonable time may be determined as a question of law when (1) the facts bearing on the delay in providing notice are not in dispute and (2) the insured has not offered a valid excuse for the delay.” New York v. Blank, 27 F.3d 783, 795 (2d...