Summary
In Charles F. Evans Co. v. Zurich Ins. Co., supra, 95 N.Y.2d 779, the plaintiff was a construction subcontractor who installed skylights in the building of a local company.
Summary of this case from QSP, Inc. v. Aetna Casualty & Surety Co.Opinion
Argued April 5, 2000.
May 11, 2000.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered June 17, 1999, which affirmed (1) an order of the Supreme Court (William N. Ellison, J.), entered in Chemung County, granting plaintiff's motion for summary judgment, denying defendant's cross motion for summary judgment and directing defendant to defend plaintiff in the third-party action commenced against it by Damon G. Douglas Company in Superior Court, Union County, New Jersey, and to pay to plaintiff all amounts which it has expended or is required to expend in the defense of the action, and (2) the judgment entered thereon.
Melito Adolfsen, P.C., New York City (Ignatius John Melito and Steven I. Lewbel of counsel), for appellant.
Sayles Evans, Elmira (Paul R. Corradini of counsel), for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiff Charles F. Evans Company, an insured, seeks a declaration that defendant Zurich Insurance Company must defend it in an underlying action.
Damon G. Douglas Company, a general contractor, subcontracted with Evans to do roofing work for a building constructed for BASF Corporation. Douglas sued BASF claiming the remaining amounts due under the construction contract. BASF, in turn, counterclaimed against Douglas, alleging that the roofing around the skylights in the new building was improperly installed and leaked. Douglas then brought a third-party action for indemnity and contribution against Evans. BASF's counterclaim in the underlying action sought damages for breach of the construction contract, in part incurred because of bodily injury. Specifically, BASF alleged that due to the leaking roof, its employees "slipped and fell in puddles * * * and were injured," and "[a]s a result thereof, BASF has been forced to incur expenses, in the form of lost-time and workers' compensation claims, and has thereby been damaged."
The policy, providing coverage for "those sums that the insured becomes legally obligated to pay as damages because of `bodily injury'," is at least ambiguous as to whether the claims in question are covered, and must be construed against the insurer. The claims arising from slip-and-fall injuries thus allege "facts or grounds which bring the action within the protection purchased," and trigger Zurich's duty to defend Evans (Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310; see, Schwab v. Fireman's Ins. Co., 41 N.Y.2d 947, 949; International Paper Co. v. Continental Cas. Co., 35 N.Y.2d 322, 325-326). We also reject Zurich's contention that the alleged slip-and-falls were not "occurrences" (defined to include an "accident") within the meaning of its policy.
Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.