St. Pierre v. Dyer

• Decision Date: 25 September 1998
• Docket Number: No. 96-CV-1616.,96-CV-1616.
• Citation: 21 F.Supp.2d 138
• Parties: Andre St. PIERRE and Que-Van Transport, Inc., Plaintiffs, v. Luke R. DYER, Defendant and Cross-Defendant; Coburn Insuring Agency, Inc., Defendant, Cross-Defendant and Counter-Defendant; and Agents Service Corporation, Defendant and Cross-Claimant; Luke R. DYER, Third-Party Plaintiff, v. AMERICAN IRON AND METAL, INC., Third-Party Defendant, Counter-Defendant and Cross-Defendant; and Connecticut Indemnity, Third-Party Defendant, Counter-Defendant and Cross-Claimant.
• Court: U.S. District Court — Northern District of New York

21 F.Supp.2d 138

Andre St. PIERRE and Que-Van Transport, Inc., Plaintiffs, v. Luke R. DYER, Defendant and Cross-Defendant;

Coburn Insuring Agency, Inc., Defendant, Cross-Defendant and Counter-Defendant;

and

Agents Service Corporation, Defendant and Cross-Claimant;

Luke R. DYER, Third-Party Plaintiff, v. AMERICAN IRON AND METAL, INC., Third-Party Defendant, Counter-Defendant and Cross-Defendant; and Connecticut Indemnity, Third-Party Defendant, Counter-Defendant and Cross-Claimant.

No. 96-CV-1616.

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

September 25, 1998.

MacKrell, Rowlands, Premo & Pierro, P.C., Albany, NY, for Plaintiffs; Paul A. Levine, of counsel.

Thuillez, Ford, Gold & Johnson LLP, Albany, NY, for Defendant, Cross-Defendant and Third-Party Plaintiff Luke R. Dyer; Donald P. Ford, Jr., of counsel.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, Albany, NY, for Defendant, Cross-Defendant and Counter-Defendant Coburn Insuring Agency; Colleen M. O'Connell, of counsel.

Fernandez, Burstein & Tuczinski, P.C., Albany, NY, for Defendant and Cross-Claimant Agents Service Corporation, Richard L. Burstein, of counsel.

MacKenzie, Smith, Lewis, Mitchell & Hughes, LLP, Syracuse, NY, for Third-Party Defendant, Counter-Claimant and Cross-Claimant Connecticut Indemnity; David M. Garber, of counsel.

MEMORANDUM-DECISION AND ORDER

HOMER, United States Magistrate Judge.

Presently pending are the motions of defendants Luke R. Dyer ("Dyer"), Coburn Insuring Agency, Inc. ("Coburn") and Agents Service Corporation ("ASERCO") for summary judgment pursuant to Fed.R.Civ.P. 56. Docket Nos. 25, 27 & 30. Also pending is a motion for summary judgment by Connecticut Indemnity on both the direct and third-party claims. Docket No. 47. For the reasons which follow, each motion is granted.

I. Background

Viewed in the light most favorable to the plaintiffs, the facts presented on these motions are as follows.

A. The Insurance Contract

On July 21, 1987, plaintiff Andre St. Pierre ("St. Pierre") signed an agreement with Kenworth Metropolitan ("Kenworth")¹ to lease a new tractor and trailer.² The total lease payments were $169,000 to be paid in fifty-four monthly installments of $2,994.30 beginning on September 1, 1987. The lease contained an option to buy. Among other things the lease also required St. Pierre to (1) maintain theft insurance for the sole benefit of Kenworth, and (2) require due notice to Kenworth prior to cancellation of this insurance. Ford Aff. (Docket No. 25), Ex. I.

On August 4, 1987, St. Pierre met with Dyer. Dyer assisted St. Pierre in completing applications for the required insurance coverage for the tractor and trailer. Dyer advised St. Pierre that the total cost for the insurance would be $15,401.00. Financing for the cost of the insurance was arranged for St. Pierre by Dyer through ASERCO. Joan St. Pierre Aff. (Docket No. 31), ¶ 5. Under the financing agreement, St. Pierre was obligated to pay ASERCO $1,298.22 in nine monthly installments commencing on August 25, 1987. Compl. (Docket No. 1), ¶ 24. Dyer placed the theft and other coverage for the tractor and trailer with Connecticut Indemnity with coverage effective August 5, 1987 through August 5, 1988. Joan St. Pierre Aff. at ¶ 7. The Connecticut Indemnity policy named St. Pierre as the insured and Kenworth as the loss payee. The maximum payment required under the policy for loss was $76,500. The policy required that notice of cancellation of the policy be provided to Kenworth. Ford Aff. at ¶ 18 and Exs. G & H.

St. Pierre failed to make the payment to ASERCO due November 25, 1987. On December 10, 1987, ASERCO mailed notices to St. Pierre and Que-Van that the policy would be canceled if payment was not received. The notices were mailed to both St. Pierre and Que-Van at an address in the Province of Ontario, Canada although St. Pierre had notified ASERCO on October 7 that mail should continue to be sent to his residence in the Province of Quebec. Ford Aff. at Ex. B; Joan St. Pierre Aff. at ¶¶ 9 & 12. St. Pierre actually received the notice on January 26, 1988. Joan St. Pierre Aff. at ¶ 12. On December 28, 1987, ASERCO sent notice to St. Pierre, again at the Ontario address, that the insurance policy was canceled effective December 31, 1987. St. Pierre did not receive this notice until after February 19, 1988. Id.

On December 28, 1987, unaware of the cancellation notices from ASERCO, St. Pierre sent ASERCO a check for the overdue premium in the amount of $1,298.00. The check was negotiated by ASERCO and credited to St. Pierre's account on January 13, 1988. Id. at ¶ 11. Following receipt of the cancellation notice on January 26, St. Pierre contacted Dyer, who advised that the insurance coverage remained in effect. Id. at ¶ 13. However, on February 12, 1988, Connecticut Indemnity sent notice to Kenworth concerning the policy on the tractor and trailer as follows:

Cancellation or termination will take effect on:

Thursday, December 31, 1988 at 12:01 A.M.

You are hereby notified that the insurance coverage issued to [St. Pierre and Que-Van] is hereby canceled (or terminated) in accordance with the conditions of the policy, said cancellation (or termination) to be effective on and after the date and time mentioned above.

Ford Aff. at Ex. G. (emphasis added).

On February 19, 1988, the tractor and trailer were stolen from a garage in Quebec. Joan St. Pierre Aff. at ¶ 14. St. Pierre notified Dyer of the theft and was advised by Dyer that "there should be no problem with the claim." Id. at ¶ 15. However, in a notice dated February 25, 1988, Connecticut Indemnity sent to Kenworth a revised "Courtesy Copy of Cancellation or Non Renewal" which was identical to the February 12 notice except that the year of the effective date of the cancellation was changed from 1988 to 1987. Ford Aff. at Ex. H. Connecticut Indemnity also advised St. Pierre in a letter dated March 1, 1988 that the policy had been cancelled by ASERCO effective December 31, 1987 for nonpayment. Connecticut Indemnity accordingly declined coverage for the theft of the tractor and trailer. Joan St. Pierre Aff. at ¶ 17.³

B. Prior Actions

Plaintiffs commenced an action in this district in 1988. The district court granted summary judgment to the defendants on the ground that because the proceeds of the insurance policy were payable to Kenworth rather than to St. Pierre, St. Pierre lacked standing to maintain the action. St. Pierre v. Coburn Insuring Agency, No. 88-CV-971, 1993 WL 85757 (N.D.N.Y. Mar. 22, 1993) (McCurn, J.). The Second Circuit Court of Appeals affirmed that decision. St. Pierre v. Coburn Insuring Agency, 28 F.3d 275, 276 (2d Cir.1994) ("St. Pierre I"). In 1996, Kenworth's successor in interest, American Iron & Metal, Inc., commenced an action against St. Pierre in Quebec seeking damages under the lease for the loss of the tractor and trailer. Ford Aff. at Ex. J. St. Pierre failed to answer and has been adjudged in default. Ford Aff. at Ex. K; Levine Aff. (Docket No. 29) at ¶ 18.

C. This Action

St. Pierre and Que-Van commenced this action on October 3, 1996. Docket No. 1. The complaint alleges claims for contribution, indemnification, breach of fiduciary duty, malpractice and negligence, common law fraud and deceit, breach of contract, claims under state insurance law, and violations of federal and state statutory law. Jurisdiction is alleged for all claims as diversity of citizenship under 28 U.S.C. § 1332 and for a part under 15 U.S.C. § 1601 et seq. Various counterclaims, cross-claims and third-party claims have also been asserted.

II. Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), if there is "no genuine issue as to any material fact ... the moving party is entitled to judgment as a matter of law, ... where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994); see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). Once the movant has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994).

The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). "Furthermore, the non-movant `will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996) (citations omitted).

III. Discussion

A. Res Judicata

The complaint in St. Pierre I alleged eight causes of action for breach of fiduciary duty, negligence, malpractice, common law fraud and deceit, breach of contract and violations of federal and state statutory law. Docket No. 1, Ex. A. The district court there granted the defendants' motions for summary judgment in their entirety.⁴ 1993 WL 85757, at *6. That ruling was affirmed in all respects by the court of appeals. 28 F.3d at 276. In the complaint here, the third through the tenth causes of action are identical in all material respects to the eight causes of action in the St. Pierre I complaint. Those eight causes of action are, therefore, all barred by the doctrine of res judicata. See Computer Assocs., Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir.1997), cert. denied, ___ U.S. ___, 118...