Opinion
# 2019-029-095 Claim No. 128233 Motion No. M-93458 Motion No. M-93592 Motion No. M-94113 Motion No. M-94346 Cross-Motion No. CM-93923
12-09-2019
CHAMMA K. BRANDON v. THE STATE OF NEW YORK
CHAMMA K. BRANDON, PRO SE LETITIA JAMES, ATTORNEY GENERAL By: Joseph E. Scolavino, Assistant Attorney General
Synopsis
In the State's third-party claim seeking declaratory judgment that five insurers have a duty to defend and indemnify the State in the underlying negligence claim by an inmate at Sing Sing, the court: granted the motions to dismiss by primary insurer American Family Home Insurance Company and excess insurer Merchants Mutual Insurance Company; granted the motion for summary judgment by Scottsdale Insurance Company; and denied the motions for summary judgment by primary insurers Travelers Indemnity Company of Connecticut and Admiral Insurance Company.
Case information
| UID: | 2019-029-095 |
| Claimant(s): | CHAMMA K. BRANDON |
| Claimant short name: | BRANDON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | THE STATE OF NEW YORK |
| Third-party defendant(s): | ADMIRAL INSURANCE COMPANY, AMERICAN FAMILY HOME INSURANCE COMPANY, MERCHANTS MUTUAL INSURANCE COMPANY, SCOTTSDALE INSURANCE COMPANY AND TRAVELERS INDEMNITY COMPANY OF CONNECTICUT |
| Claim number(s): | 128233 |
| Motion number(s): | M-93458, M-93592, M-94113, M-94346 |
| Cross-motion number(s): | CM-93923 |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | CHAMMA K. BRANDON, PRO SE |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: Joseph E. Scolavino, Assistant Attorney General |
| Third-party defendant's attorney: | PILLINGER MILLER TARALLO, LLP (Attorneys for Admiral Insurance Company) By: David M. Cassidy, Esq. LEWIS JONS AVALLONE AVILES, LLP (Attorneys for American Family Home Insurance Company) By: Karen M. Berberich, Esq. HURWITZ & FINE, P.C. (Attorneys for Merchants Mutual Insurance Company) By: Dan D. Kohane, Esq. TRAUB LIEBERMAN STRAUS & SHREWSBERRY, LLP (Attorneys for Scottsdale Insurance Company) By: Eric D. Suben, Esq. and Stephen D. Straus, Esq. RIVKIN RADLER LLP (Attorneys for Travelers Indemnity Company of Connecticut) By: Alan C. Eagle, Esq. and Joanne M. Engeldrum, Esq. |
| Signature date: | December 9, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The pro se claim for medical malpractice and gross negligence, filed July 18, 2016, seeks damages for injuries claimant allegedly sustained due to defendant's negligent treatment of his insomnia, and defendant's failure to provide claimant with protective breathing equipment during construction around his and other housing units at Sing Sing Correctional Facility ("Sing Sing". The third-party claim of the State of New York ("the State"), dated May 15, 2018, arises from: the contracts between the State and several contractors, specifically from the standard requirement that was part of the contracts that insurance be obtained by the contractor in which the State and its personnel would be named as additional insureds; and from the insurance contracts that were obtained in which the State and its employees were so named. The third-party claim seeks a declaratory judgment that the third-party defendants "be directed to defend and indemnify" the State in connection with the underlying claim.
The following third-party defendants move to dismiss the third-party claim: American Family Home Insurance Company ("AFHIC"), the primary insurer for S&O Construction Services ("S&O"), pursuant to CPLR 3211(a)(1) and (a)(7) (M-93592); and Merchants Mutual Insurance Company ("Merchants Mutual"), the excess insurer for S&O, also pursuant to CPLR 3211(a)(1) and (7) (CM-93923). The following third-party defendants move for summary judgment: Admiral Insurance Company ("Admiral"), primary insurer of American Jail Products, LLC ("American Jail") (M-94346); Nationwide E&S Specialty sued as Scottsdale Insurance Company ("Scottsdale"), the excess insurer of American Jail (M-94113); and Travelers Indemnity Company of Connecticut ("Travelers"), primary insurer of Maximum Security Products Corporation ("Maximum Security") (M-93458). Defendant has submitted oppositions to each of the motions. The court considers the five motions collectively as they raise the same issues of law concerning the moving parties' duty to defend and indemnify the State, their additional insured.
See Affirmation of Karen M. Berberich, Esq. in support of the motion to dismiss submitted by AFHIC, and Exhs. A-G; Affirmation of Dan D. Kohane, Esq. in support of Merchant Mutual's cross-motion to dismiss, incorporating by reference the facts and arguments made and exhibits submitted in support of AFHIC motion, and Exhs. A-B.
See Affirmation of David M. Cassidy, Esq. in support of Admiral's motion for summary judgment, and Exhs. A-G; Affirmation of Joanne M. Engeldrum, Esq. in support of Travelers' Motion for Summary Judgment, and Exhs. A-F; and Affirmation of Eric D. Suben, Esq. in support of Scottsdale's Motion for Summary Judgment, and Exhs. A-N.
The underlying claim by Mr. Brandon against the State is for gross negligence arising from "inhumane conditions" allegedly caused by construction-related dust and debris in the area of his housing block at Sing Sing during the later months of 2015 and in early 2016, and from the failure of Sing Sing personnel to provide him with protective gear. The "noxious condition" allegedly resulted in his suffering asthma attacks and respiratory ailments. The claim also asserts a second cause of action for medical malpractice arising from Sing Sing medical personnel's treatment of Mr. Brandon's insomnia. The relief requested by the State against the third-party defendants is a "judgment declaring the rights and legal relations of the parties as follows: (a) that [named insurer][. . .], be directed to defend and indemnify, up to the policy limits, the State of New York, [. . .] for the acts complained of in the underlying claim of Brandon v State of New York, Claim No. 128233."
Travelers is named in the First Cause of Action, Admiral is named in the Second Cause of Action, Scottsdale is named in the Fourth Cause of Action, AFHIC is named in the Sixth Cause of Action and Merchants Mutual is named in the Seventh Cause of Action.
While generally this court does not have jurisdiction to grant equitable relief, § 9-a(ii) of the Court of Claims Act grants this court jurisdiction as follows:
"To make a declaratory judgment as defined in section three thousand one of the civil practice law and rules with respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in any action pending in the court of claims, provided that the court shall have no jurisdiction to enter a judgment against an insurer pursuant to this subdivision either: (i) for money damages; or, (ii) if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought."
The motions seek dismissal of the third-party claim. Primary insurers AFHIC, Admiral and Travelers argue that the submitted documents show: the State is not an additional insured under their policies' provisions because the underlying claim does not allege acts or omissions by their insureds, the contractors, and instead allege independent acts or omissions by the State; and the policies do not provide coverage for medical malpractice. AFHIC also argues that the pollution exclusion provision in the policy precludes coverage. The excess carriers Merchants Mutual and Scottsdale argue they have no duty to defend because there is no coverage under the primary policies, and those policies have not yet been exhausted.
There is no dispute that the State contracted with S&O, American Jail and Maximum Security, and that the moving insurers have submitted true and accurate copies of those contracts as exhibits. There is also no dispute that these three contractors obtained insurance naming the State and its personnel additional insureds as required by the contracts, and that the moving insurers have submitted true and accurate copies of those policies as exhibits.
Admiral submitted only the signature pages of its insured American Jail's contract with the State. Scottsdale, the excess insurer for American Jail, submitted a copy of the contract (Suben Aff., Exh. D).
The court will first address the controlling legal principles, and then discuss each of the motions. "[A]n insurer's duty to defend is broader than its duty to indemnify, and arises whenever the allegations in the [claim] in the underlying action, construed liberally, suggest a reasonable possibility of coverage" (GMM Realty, LLC v St. Paul Fire and Mar. Ins. Co., 129 AD3d 909 [2d Dept 2015], internal quotation and citation omitted). "The language of the complaint need not state all the facts requisite to establish insurance coverage" (Commercial Pipe & Supply Corp. v Allstate Ins. Co., 36 AD2d 412, 415 [4th Dept 1971], affirmed by 30 NY2d 619 [1972]). When a policy represents that it will provide the insured with a defense, the Court of Appeals has said it actually constitutes "litigation insurance" in addition to liability coverage (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310 [1984], quoting International Paper Co. v Continental Cas. Co., 35 NY2d 322, 326 [1974]). An insurer may be contractually bound to defend even though it may not ultimately be bound to pay, either because its insured is not factually or legally liable or because the occurrence is later proven to be outside the policy's coverage (see One Reason Rd., LLC v Seneca Ins. Co., Inc., 163 AD3d 974 [2d Dept 2018]; Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 670 [1981]). "This standard applies equally to additional insureds and named insureds" (Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 [2010]).
An insurer can be relieved of its duty to defend only "if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision" (State Farm Fire & Cas. Co. v Joseph M., 106 AD3d 806 [2d Dept 2013], citing Allstate Ins. Co. v Zuk, 78 NY2d 41 [1991]). When an exclusion clause is relied upon to deny coverage, the burden rests upon the insurance company to demonstrate that the allegations of the complaint can be interpreted only to exclude coverage (see International Paper Co. at 325; Castracane v Knights of Columbus, 190 AD2d 707, 708 [2d Dept 1993], appeal denied by 82 NY2d 651 [1993]). Policy exclusions will only be enforced when they have been found to "have a definite and precise meaning, unattended by danger of misconception . . . and concerning which there is no reasonable basis for a difference of opinion" (Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302, 307 [2009] quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]).
In a single decision and order filed January 4, 2019, the court decided motions to dismiss filed by third-party defendants Scottsdale and Nationwide Mutual Fire Insurance Company i/p/a Nationwide Property and Casualty Insurance Company and Nationwide Mutual Insurance Company (collectively "Nationwide"). The motions raised the issue of the court's lack of subject matter jurisdiction under Court of Claims Act § 9(9-a [ii]) to issue declaratory relief "if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought." The court denied those motions as to the duty to defend, finding the issue of those insurers' duty to defend the State against the underlying claim to be an issue of law resolvable under section 9(9-a([ii]). None of the moving insurers here is arguing that the court is without subject matter jurisdiction over the third-party claim. The court will now turn to the motions.
A copy of the decision is attached to the Affirmation of Eric D. Suben, Esq. supporting Scottsdale's motion for summary judgment, as Exhibit H. The court granted the motions as to the duty to indemnify, concluding the duty is conditional and that those claims were premature. The insurers' duty to indemnify is triggered by a judgment of liability after findings of fact based on evidence submitted on motion or at a trial. The court made no final disposition as to the ultimate duty to indemnify.
Motions to Dismiss by AFHIC (M-93592) and Merchants Mutual (CM-93923)
AFHIC and Merchants Mutual move to dismiss pursuant to CPLR 3211(a)(1) and (a)(7). A dismissal motion under section (a)(1) may be granted only if the documentary evidence submitted "utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 678 [2d Dept 2017]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2d Dept 2010]). "In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d at 996-997; see Fox Paine & Co. at 678; Fontanetta v John Doe 1, 73 AD3d 78, 83-86 [2d Dept 2010]). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable,' would qualify as 'documentary evidence' in the proper case" (Fontanetta at 84-85). Insurance policies also qualify as "documentary evidence" if "unambiguous, authentic, and undeniable" (Granada at 996-997; see Fox Paine at 678). Affidavits, deposition and trial testimony, e-mails and letters are not considered "documentary evidence" under CPLR 3211(a)(1) (see Granada at 996; Fontanetta at 85).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction. The court must accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
AFHIC's motion to dismiss is supported with an affirmation by its attorney Karen M. Berberich ("Berberich Aff."), attaching copies of the following documents as exhibits: the underlying claim (Exh. A); the notice of impleader and third-party claim (Exh. B); AFHIC's answer (Exh. C); the project contract between AFHIC's insured S&O (Exh. D); AFHIC's general liability policy issued to S&O (Exh. E); the affidavit of S&O's President Jeffrey B. Senft (Exh. F); and a memorandum of law (Exh. G). Merchants Mutual's motion is supported with an affirmation and reply affirmation by Dan D. Kohane, Esq., attaching copies of the excess policy, and incorporating by reference the documents and arguments submitted in support of the motion by the primary insurer AFHIC. Defendant does not dispute the authenticity of the contract and the policies, which qualify as documentary evidence under CPLR 3211(a)(1).
On reviewing the AFHIC policy and the underlying claim, the court finds the claim's allegations, construed liberally, do not come within the coverage provided by the policy. AFHIC furnished S&O with a commercial general liability insurance policy for the period of the claim, 2015-2016. The policy provides that the State and its personnel are additional insureds "with respect to liability for 'bodily injury', 'property damage' [. . .] caused, in whole or in part, by" the insured S&O's "acts or omissions; or [. . .] [t]he acts or omissions of those acting on [S&O's] behalf; in the performance of [S&O's] ongoing operations for the additional insured(s)" (Berberich Aff. at ¶¶ 21-22, and Exh. E). AFHIC argues, inter alia, that the State does not qualify as an additional insured because Mr. Brandon does not allege his injuries arose from S&O's work providing heated fresh air intakes.
Merchants Mutual furnished S&O with an excess umbrella policy for the period of the claim. The policy provides, in relevant part, that Merchants Mutual "will pay on behalf of the insured the 'ultimate net loss' in excess of the 'retained limit' because of 'bodily injury' . . . to which the insurance applies. We will have the right and duty to defend the insured against any 'suit' seeking damages for such bodily injury or 'property damage' when the 'underlying insurance' does not provide coverage or the limits of 'underlying insurance' have been exhausted" (Kohane Aff. at ¶ 9, Exh. B). Merchants Mutual argues there is no coverage under its policy because there is none under AFHIC's, and the limits of AFHIC's policy have not been exhausted, so Merchants Mutual has no duty to defend.
The underlying claim alleges, in pertinent part, that during the later months of 2015 through the beginning of 2016, there was ongoing construction at Sing Sing, specifically, "switching the opening/closing mechanisms of all the cell doors from manual to electronic in HBB [. . . and] the replacement of the old corroded fencing enclosing all of the various housing units in HBB, with 'box-grilled' styled fencing, as commenced and completed in Housing Block A." The claim also alleges, and attaches grievance documents and medical records, indicating that: the "construction" created "inhumane conditions" and "noxious" air in his housing unit, which caused him to experience asthma attacks and to be taken to the emergency room; and although guards and construction workers wore breathing masks, the inmates were not given any and claimant's request for one was denied (Berberich Aff., Exh. A). The claim does not identify the contractors and does not mention heated fresh air intakes.
The third-party claim contains the following allegations regarding S&O and AFHIC (see Berberich Aff., Exh. B at ¶¶ 84-98): In 2013, S&O entered into an agreement with the State to provide heated fresh air intakes for 'A' and 'B' Blocks, building numbers 32 and 34, at Sing Sing (Berberich Aff., Exh. D). The Project Manual ("PM") constituted part of the contractual agreement. Section 18.1 of the general conditions located in the PM provides,
" '[t]he Contractor shall faithfully perform and complete all of the Work required by the Contract, and has full responsibility for the following risks . . . section 18.1 .2 Injury to persons (including death resulting there from), or damage to property caused by an occurrence arising out of the performance of this Contract for which the Contractor may be legally liable under the laws of
torts.' " (Exh. B at ¶ 86, quoting the Contract [Exh. D]).
Section 18.3 of the Contract states that " '[t]he Contractor shall indemnify and save harmless the State its employees and agents from suits, actions, damages, and costs of every name and description relating to the performance of this Contract.' " (id. at ¶ 87). Section 19.1 of the General Conditions required S&O to furnish a Certificate of Insurance, and Section 19.1 .1 required S&O to " 'name The People of the State of New York, its officers, agents, employees and the assigned construction manager as additional insureds there under' " (id. at 88).
The third-party claim alleges that AFHIC has a duty to defend the State against the underlying claim, based on S&O's agreement to install heated fresh air intakes in the same housing block where "noxious conditions" created by the construction allegedly sickened claimant. AFHIC argues that it contracted to install heated fresh air intakes, which the claim does not allege was part of the construction. Defendant, in its memorandum of law, argues that, "[t]o the extent S&O's installation of those air intakes was, hypothetically, negligent, resulting in Claimant's exposure to said air chemicals, this 'relate[s] to the performance of [the] Contract' with S&O" (Memo of Law at pg. 14).
The court agrees with AFHIC. The policy makes the State an additional insured only as to "liability for 'bodily injury', [. . .] caused, in whole or in part, by" the insured S&O's "acts or omissions; or [. . .] [t]he acts or omissions of those acting on [S&O's] behalf; in the performance of [S&O's] ongoing operations for the additional insured(s)" (Berberich Aff. at ¶¶ 21-22, and Exh. E). In interpreting an insurance policy, where the provisions "are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement" (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]). The policy language is clear and unambiguous. The claim alleges injuries caused by dust and debris released into the air because of construction in claimant's housing block at Sing Sing in 2015-2016. The only "ongoing operations" alleged in the claim relate to the construction, described as the removal of gates and the switching of locking mechanisms. S&O's work on fresh air intakes cannot reasonably be construed as "acts or omissions [. . .] in the performance of ongoing operations."
Because the court finds the claim's allegations, construed liberally, do not reasonably come within the coverage provided to S&O by AFHIC, Merchant Mutual's excess policy, which insures only for loss covered by the primary policy, also does not provide coverage. Merchant Mutual's additional arguments are moot, and a discussion of CPLR 3211(a)(7) is unnecessary.
Even if the primary policy did afford coverage, the court agrees with Merchants Mutual that as an excess carrier, it has no duty to defend until exhaustion of the primary's limits. This point is discussed more thoroughly infra.
Motions for Summary Judgment by Admiral (M-94346) and Scottsdale (M-94113)
Turning to the motions for summary judgment under CPLR 3212, the initial burden is on the moving party to come forward with proof in admissible form showing its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made . . . the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Sonne v Bd. of Trustees of Vil. of Suffern, 67 AD3d 192 [2d Dept 2009], internal quotation and citation omitted). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (see Ruzycki v Baker, 301 AD2d 48 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708 [3d Dept 2000]).
As to the motions by primary insurer Admiral and excess insurer Scottsdale, Admiral supports its motion with an Affirmation by David J. Cassidy, Esq. ("Cassidy Aff."), attaching as exhibits its policies (Exhs. C and D), the third-party claim (Exh. A), its answer (Exh. B), the signature pages of the State's contract with American Jail (Exh. E), and the State's tender letter and Admiral's denial (Exhs. F and G). Scottsdale supports its motion with an Affirmation by Eric D. Suben, Esq, attaching as exhibits copies of the policy (Exh. E), the State's contract with American Jail (Exh. E), the pleadings and other documents.
Admiral claims that it did not submit a copy of the entire contract because the State did not produce one. Instead, Admiral accepts as true the allegations in the third-party claim pertinent to American Jail's contract (Cassidy Aff., n.1 at pg. 3). Of course, Admiral could have obtained a copy of the contract from its insured.
Admiral and Scottsdale furnished American Jail with commercial general liability policies for the period of the claim, 2015-2016. Under the Admiral policies, additional insured status is extended only to the extent the named additional insured is liable for "bodily injury" or "property damage" that was "caused, in whole or in part," by American Jail's "acts or omissions" (Cassidy Aff., Exhs. C & D). Admiral argues, inter alia, that the State cannot demonstrate its liability in the action by Mr. Brandon was "caused by" American Jail's "acts or omissions," where the action alleges only the State's negligence in failing to provide Mr. Brandon with protective gear.
Considering the policy language and the underlying claim in the light most favorable to the state, the court finds that Admiral has failed to establish prima facie that the State does not qualify as an additional insured, and that no coverage exists. The language of Admiral's additional insured endorsement is unambiguous. "The phrase 'caused by' 'does not materially differ from the . . . phrase, "arising out of" ' " (National Union Fire Ins. Co. of Pittsburgh, PA v Greenwich Ins. Co., 103 AD3d 473, 474 [1st Dept 2013], quoting W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d 530, 530 [1st Dept 2012]). "[T]he phrase 'arising out of' focuses 'not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained' " (National Union Fire Ins. Co. of Pittsburgh, PA at 474, quoting Regal Constr. Corp. at 38).
The claim of negligence against the State is not, as claimant argues, based solely on the State's failure to give Mr. Brandon protective gear, which Admiral calls an "independent" act or omission. Rather, the allegations, construed in the State's favor, describe a hazardous condition that was not being adequately addressed by either the State or the contractors, and for which the State could be found vicariously liable. Admiral acknowledges that coverage would exist if the claim alleged the State's vicarious liability for the contractors' negligence, but argues that the claim does not allege vicarious liability. The court disagrees.
The claim alleges that the construction-related release of dust, fumes and particles in the air "caused" him to have asthma attacks, and the construction workers and correction officers in the area were given breathing masks (Cassidy Aff., Exh. A [third-party claim, attaching underlying claim]). The general nature of the operation described by these allegations is one that was hazardous to the people in the vicinity, and a reasonable inference is that the contractors were negligent in failing to remedy the condition. Admiral also argues that the claim specifically ties only the work removing the fence with the creation of the hazardous condition. It is enough that the claim also alleges the "construction," comprised of both the fence removal and switching of the locking mechanisms, caused the "noxious condition" and Mr. Brandon's injuries.
The claim does not identify the contractors, but it describes their work as removing fencing and switching locking mechanisms. The third-party claim asserts, and Admiral does not dispute, that American Jail is the contractor that switched the locking systems as alleged in the claim.
As a rule, "an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" American Guar. & Liab. Ins. Co. v Federico's Salon, Inc., 66 AD3d 521, 522 [1st Dept 2009], quoting Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]). "The exceptions to this rule are [inter alia, . . .] where the employer [. . .] is under a duty to keep the premises safe; or [. . .] has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work, or dangers which should have been anticipated by the employer" (Ostroy v Six Sq. LLC, 2011 NY Misc LEXIS 3207 [NY Sup Ct, July 1, 2011], affirmed by 100 AD3d 493 [1st Dept 2012], citing Rosenberg at 668). The State has a special duty to protect inmates in its correctional facilities from foreseeable harm (see Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]), and the State assigned construction work to an independent contractor that it knew or should have anticipated was inherently hazardous.
The existence of a hazardous condition, and whether the State breached its special duty to protect Mr. Brandon from that condition, are factual issues to be resolved by this court based on admissible evidence. To what extent the State is entitled to indemnification under Admiral's policy for any damages ultimately assessed will involve issues of fact regarding the contractors' contractual, statutory and common law duties to reduce the risk of harm they knew or reasonably should have known could result from the construction. A separate action in the Supreme Court will be necessary to resolve those issues. Admiral failed to meet its burden to establish prima facie its entitlement to judgment as a matter of law, and that there are no material issues of fact. Because Admiral failed to establish prima facie the lack of coverage, the burden does not shift to the State.
However, Scottsdale has shown, with admissible evidence, that its policy is excess to the primary Admiral policy, and the excess insurer's duty to defend is not triggered until the primary's limits have been exhausted. Scottsdale's excess policy provides, in pertinent part, that Scottsdale will have the right and duty to defend the insured against any suit seeking damages for such "injury or damage" when the applicable limits of "controlling underlying insurance" (Admiral's policies) have been exhausted (Suben Aff. at ¶¶ 29-30 and Exh. K). This provision is consistent with New York law. "When a policy provides only excess coverage, the duty to defend or indemnify is not triggered until coverage under the primary policy has been exhausted or otherwise terminated" (L&B Estates, LLC v Allstate Ins., 71 AD3d 834, 837 [2d Dept 2010] [granting insurer summary judgment]; see Great N. Ins. Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682, 686-687 [1999]). Admiral has denied coverage. Consequently, Scottsdale is entitled to summary judgment declaring that it is not the primary insurer, that the coverage it provided to American Jail is excess to that provided by the Admiral policy, and that, therefore, it was not obligated to defend or indemnify the State as an additional insured in the underlying action unless its obligation to provide excess coverage is triggered. The State has failed to raise a disputed material issue of fact in response.
The State's reliance on the court's prior decision denying Scottsdale's motion to dismiss the third-party claim is misplaced. That decision addressed only the issue of subject matter jurisdiction.
Travelers' Motion for Summary Judgment (M-93458)
Travelers furnished Maximum Security with commercial general liability policies for the period of the claim, 2015-2016. Maximum Security contracted with the State to replace gallery fencing for A and B Blocks at Sing Sing. The motion is supported by an affirmation by Travelers counsel ("Engeldrum Aff."), attaching as exhibits the contract (Exh. 1), pleadings (Exhs. 2-3 and E), and correspondence (Exh. F). There is also an affidavit by claims adjuster Karen Quinn ("Quinn Aff."), attaching the policies as Exhibits A - D. The Travelers policies generally provide coverage for sums Maximum Security is legally obligated to pay as damages because of "bodily injury" or "property damage" that takes place during the policy period and is caused by an "occurrence," and a duty to defend an insured against any "suit" seeking such damages (Quinn Aff. at ¶ 5). The term "occurrence" is defined in the policies as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions" (id. at ¶ 5, and attached Exh. A, Bates Stamp Nos. 000098, 000111; Exh. B, Bates Stamp Nos. 000310, 000323; Exh. C, Bates Stamp Nos. 000518, 531; Exh. D, Bates Stamp Nos. 000720, 000733).
The 2014 and 2015 Travelers policies contain a Blanket Additional Insured Endorsement providing that the State is an additional insured with respect to liability "caused by" Maximum Security's work for the State, and not with respect to the "independent acts or omissions" of the State (Engeldrum Aff. at ¶ 14, Quinn Aff. at ¶ 5). The 2016 and 2017 policies contain a Blanket Additional Insured Endorsement providing that the State is an additional insured with respect to liability for "bodily injury" to the extent "caused by" acts or omissions of Maximum Security in the performance of its work with the State, and not for "independent acts or omissions" of the state (id. at ¶ 15). Travelers argues that the State does not qualify as an additional insured because the claim asserts only negligent acts or omissions committed by the State.
The court denies Travelers' motion for summary judgment for the same reasons as discussed above in the denial of Admiral's motion. Indeed, the claim specifically alleges that the removal of the fencing caused the hazardous condition. Additionally, Maximum Security's contract with the State (Engeldrum Aff., Exh. 1) contains the following provision regarding the contractor's contractual and statutory obligation to take precautionary actions if "a harmful dust hazard is created" by its work: "25.2 If, in carrying out this Work, a harmful dust hazard is created for which appliances or methods for the elimination of harmful dust have been approved by the Board of Standards and Appeals, then the Contractor shall install, maintain and effectively operate such appliances and methods during the life of this Contract [. . .]."
To the extent that the moving insurers argue that the State is not an additional insured as to Mr. Brandon's claim of medical malpractice in Sing Sing's treatment of claimant's insomnia, the court agrees as the claim is unrelated to the construction underlying the claim of gross negligence. However, that does not negate coverage as to Travelers and Admiral. "If any of the claims against the insured arguably arise from covered events, the insurer is required to defend the entire action" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]; see Cosser v One Beacon Ins. Group, 15 AD3d 871, 873-874 [4th Dept 2005]; Simply Lite Food Corp. v Aetna Cas. & Sur. Co. of Am., 245 AD2d 500, 500 [2d Dept 1997]).
Accordingly, the following third-party defendants' motions to dismiss are granted: American Family Home Insurance Company (M-93592) and Merchants Mutual Insurance Company (CM-93923). The following third-party defendant's motion for summary judgment is granted: Scottsdale Insurance Company (M-94113). The following third-party defendants' motions for summary judgment are denied: Travelers Indemnity Company of Connecticut (M-93458), and Admiral Insurance Company (M-94346).
December 9, 2019
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims Papers considered: Motion No. M-93458 (Motion for Summary Judgment by Travelers Indemnity Company of Connecticut) Notice of Motion, Affirmation of Joanne M. Engeldrum, Esq. in Support and Exhibits, Affidavit of Karen Quinn in Support and Exhibits [on disc], and Memorandum of Law in Support Affirmation in Opposition Reply Memorandum of Law Motion No. M-93592 (Motion to Dismiss by American Family Home Insurance Company) Notice of Motion, Affirmation of Karen M. Berberich, Esq. in Support and Exhibits Affirmation in Opposition Reply Affirmation Cross-Motion No. CM-93923 (Cross-Motion to Dismiss by Merchants Mutual Insurance Company) Notice of Cross-Motion, Affirmation of Dan D. Kohane, Esq. in Support and Exhibits Affirmation in Opposition Reply Affirmation and Exhibits Motion No. M-94113 (Motion for Summary Judgment by Scottsdale Insurance Company) Notice of Motion, Affirmation of Eric D. Suben, Esq. and Exhibits Affirmation in Opposition and Exhibits Reply Affirmation Motion No. M-94346 (Motion for Summary Judgment by Admiral Insurance Company) Notice of Motion, Affirmation of David M. Cassidy, Esq. and Exhibits Affirmation in Opposition, Memorandum of Law Reply Memorandum of Law