Failure to Procure Insurance.

Policy Period

Direct Action/Timely Disclaimers - Insurance Law § 3420(d)

Policy Rescission - Material Misrepresentation.

Duty to Defend/Pollution Exclusion/Notice to Excess Insurers - WTC Claims

Validity of Disclaimer/Employer's Liability Exclusion

Direct Action

Contractual Indemnification

Contractual Indemnification/Common-Law Indemnification. 

Common-Law Indemnification

Contractual Indemnification

Contractual Indemnification/Common-Law Indemnification

Failure to Procure Insurance. Court grants summary judgment to subcontractor against its sub-subcontractor for failure to procure additional insured coverage.  Court finds that contractor is not named as an additional insured in the sub-subcontractor's policy, and that a blanket additional insured endorsement containing a blank schedule of additional insureds does not satisfy the sub-subcontractor's obligation.  Court also finds that the policy's provision providing conditional coverage for contractual indemnitees does not satisfy sub-subcontractor's obligation because it provides less protection than additional insured coverage.  Court also rejects argument that a certificate of insurance listing the subcontractor as an additional insured is sufficient.  Severo v. The Rockefeller University, 2008 WL 1809543 (Sup. Ct. New York Co. April 14, 2008).

Policy Period. In connection with a lead paint case, First Department affirms finding that insurer sufficiently met burden that infants' lead injuries occurred before the policy at issue went into effect where evidence showed that lead abatement occurred prior to the policy period.  Court rejects argument that insurer was required to provide expert medical testimony to carry its burden that injuries predated the policy.  Fire & Cas. Ins. Co. of Connecticut v. Solomon, 2008 WL 927996 (1st Dept. April 8, 2008).

Direct Action/Timely Disclaimers - Insurance Law § 3420(d). In connection with an auto accident, plaintiff took a default judgment against defendants, two ambulette companies with an apparent vehicle leasing agreement between them.  In a direct action against one of the defendant's insurers, court grants summary judgment upholding the disclaimer.  Court rejects plaintiff's argument that an 81-day delay in disclaiming rendered the disclaimer untimely under Insurance Law § 3420(d).  Court finds it was reasonably necessary for insurer to investigate late notice, and that the investigation was hampered by the insured's evasive conduct.  Court also holds that plaintiff does not create a question of fact regarding timeliness of the disclaimer based on her allegedly diligent efforts to place the insurer on notice, since the disclaimer was not limited to late notice.  Marino v. CNA Ins. Co., 2008 WL 1787690 (E.D.N.Y. April 17, 2008).

Policy Rescission - Material Misrepresentation. Life insurer brought action seeking rescission of decedent's policy based on material misrepresentations in her application.  Estate counterclaimed, alleging insurer negligently issued policy where the designated beneficiary procured the policy with the intent to murder the decedent.  Court finds issue of fact regarding whether policy is void because it was procured by the beneficiary with the intent to murder the decedent, noting that such claims require insurer to use extrinsic evidence to prove that decedent had no independent reason to insure her life, and that only motivation for procuring policy was supplied by the beneficiary.  Court notes the decedent had a minor daughter, and had made statements that she intended her life insurance to be for the benefit of her daughter, who she did not trust with money.  However, court grants summary judgment to insurer voiding the policy based on insurer's proof that decedent misrepresented her income and the existence of other life insurance policies, and underwriting proof that insurer would not have issued the policy had it known otherwise.  John Hancock Life Ins. Co. v. Perchikov, 2008 WL 1787711 (E.D.N.Y. April 17, 2008).

Duty to Defend/Pollution Exclusion/Notice to Excess Insurers - WTC Claims. In an ongoing coverage action by the WTC captive insurer for equitable contribution and reimbursement against excess insurers in connection with approximately 10,000 claims of bodily injury arising from the WTC clean-up being defended by the captive, court issued decision with a fuller explanation of its ruling that excess insurers have a duty to defend.  Noting the exceedingly broad duty to defend in New York, court explains that excess insurers had the unique opportunity to underwrite a policy after the loss-causing event occurred, and that the coverage issued was for the broad purpose of covering the claims at issue.  Court rejects excess insurers' argument that the policies' pollution exclusion applies, observing that the underlying actions were brought under the Labor Law, and that the claims do not fall completely within the pollution exclusion.  Court also rejects excess insurers' notice arguments, finding that it was sufficient that the placing broker was placed on timely notice of claims, and that excess insurers were placed on notice within two days of exhaustion of the primary policy.  WTC Captive Ins. Co. v. Liberty Mut. Fire Ins. Co., 2008 WL 1748196 (April 15, 2008).

Validity of Disclaimer/Employer's Liability Exclusion. In coverage dispute arising from an underlying Labor Law action, First Department modifies order to deny additional insureds' motion seeking a declaration that insurer's disclaimer was ineffective under Insurance Law 3420(d) where questions of fact existed regarding the parties' intentions, the terms of the subcontract, and the insurer's delay in disclaiming.  Court rejects insurer's argument that the employer's liability exclusion applies where the liability of the named insured, the employer of the injured worker, would be indirect if plaintiffs are found to be additional insureds.  Yoda, LLC v. National Union Fire Ins. Co. of Pittsburgh, 2008 WL 1790785 (1st Dept. April 22, 2008).

Direct Action.  In an action to recover an unsatisfied judgment against tortfeasor's insurer under Insurance Law § 3420(a)(2), Second Department modifies order to deny insurer's motion for summary judgment dismissing the complaint where insurer failed to demonstrate that it conducted an exhaustive search of the tortfeasors' names in the company records.  Lower court properly denied plaintiff's motion for summary judgment where insurer raised a triable issue of fact as to the existence of coverage for the tortfeasor.  Marsala v. Travelers Indem. Co., 2008 WL 1748286 (2d Dept. April 15, 2008).

Contractual Indemnification.  In a Labor Law action, First Department affirms summary judgment in favor of construction manager on its claim for contractual indemnification against subcontractor that employed plaintiff.  Court finds no evidence of construction manager's negligence, rejecting as speculative an affidavit of a supervisor for the employer that stated that the construction manager caused the accident by failing to remove ground debris.  Brown v. VJB Construction Corp., 2008 WL 961562 (1st Dept. April 10, 2008).

Contractual Indemnification/Common-Law Indemnification.  In window washer's personal injury action against platform maintenance company, and building owner, First Department denies building owner's motion against window washer's employer seeking contractual and common-law indemnity where owner failed to show that window washer's negligence was the sole cause of his injuries.  Owner's claims for contractual and common-law indemnification from platform maintenance company were properly dismissed given that there was no evidence that the maintenance company had notice of any platform malfunction and the alleged malfunction did not relate to maintenance company's contractual duties.  Matthews v. Trump, 2008 WL 1790426 (1st Dept. April 22, 2008).

Common-Law Indemnification.  In restaurant's third-party action against sprinkler installer and sprinkler maintenance company arising from a fire loss, First Department modifies order to dismiss restaurant's claims where restaurant conceded its own negligence in causing the fire and issues of fact exist as to whether installer's or maintenance company's actions or omissions were a proximate cause of the damage.  Kuhn v. Sugar Reef Inc., 2008 WL 1790451 (2d Dept. April 22, 2008).

Contractual Indemnification.  In supermarket employee's personal injury action arising from a slip and fall on a ramp in a stockroom, First Department reverses order and grants out-of-possession landlord's motion to dismiss plaintiff's complaint as against it where accident occurred on private portion of premises, landlord was not contractually obligated to maintain premises, and landlord had no right to re-enter the premises.  Court notes that lower court's summary dismissal of landlord's cross-claims seeking contractual indemnification were premature where there was a possibility that landlord would be found at trial not to have acted negligently.  Reyes v. Morton Williams Associated Supermarkets, Inc., 2008 WL 1792093 (1st Dept. April 22, 2008).

Contractual Indemnification/Common-Law Indemnification.  In a wrongful death action arising from an accident in a parking lot, Second Department affirms portion of order (1) dismissing lessee's third-party claim for contractual indemnification where the subject lease contained no indemnification provision; (2) dismissing lessee's common-law indemnification claim against lessor where lessee's loss-prevention agents participated in some degree in the injury; and (3) dismissing lessee's claims against lessor alleging breach of a duty to procure insurance coverage where language of lease did not support such a claim.  Lower court erred in granting lessor's motion to dismiss lessee's third-party action in its entirety where lessee's common-law contribution claim should have survived dismissal where lessor owed a duty to maintain the parking lot where accident occurred.  Ruiz v. Griffin, 2008 WL 1820901 (2d Dept. April 22, 2008).