Opinion
# 2011-045-077 Claim No. 119246 Motion No. M-80150
12-20-2011
MACEDO v. THE STATE OF NEW YORK
Synopsis
3rd party defendant's motion to dismiss due to exclusion in endorsement in the underlying insurance policy. Case information
UID: 2011-045-077 Claimant(s): ABILIO MACEDO Claimant short name: MACEDO 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): GREENWICH INSURANCE COMPANY Claim number(s): 119246 Motion number(s): M-80150 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Claimant's attorney: Davidson & Cohen, P.C. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Terrance K. DeRosa, Volunteer Assistant Attorney General Third-party defendant's Kaufman, Dolowich, Voluck & Gonzo, LLP attorney: By: Michael L. Zigelman and Eric B. Stern, Esqs. Signature date: December 20, 2011 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Third-Party Defendant's Notice of Motion, Third-Party Defendant's Affirmation with annexed exhibits, Third-Party Defendant's Memorandum of Law, Third-Party Claimant's Affirmation in Opposition with annexed exhibits, Third-Party Defendant's Memorandum of Law in Opposition and Third-Party Defendant's Memorandum of Law in Further Support.
Third-party defendant, Greenwich Insurance Company (Greenwich), has brought this motion pursuant to CPLR 3211(a)(1) and (a)(7) seeking an order dismissing the third-party claim brought by third-party claimant, the State of New York.
Greenwich argues that the submitted documents conclusively establish that the claims alleged by claimant, Abilio Macedo, in the main action against the State are excluded from coverage by the terms of the "Injury to Workers Exclusion" Endorsement contained in the subject Owners and Contractors Protective Liability Policy (OCIP).
The underlying claim in this matter occurred on October 8, 2010 at approximately 1:30 p.m. on a dirt area abutting the west side of Route 112. At that time, claimant was a laborer employed by Intercounty Paving Associates (Intercounty). Intercounty had previously entered into a contract with the State to perform work associated with the rehabilitation of Route 112. Claimant alleges that he was injured when a cement block fell from a height onto claimant during the course of his employment at the construction site. Claimant asserts violations of Labor Law §§ 200, 2401(1) and 241(6).
On or about March 31, 2009, Intercounty entered into a contract with the State, through the NYS Department of Transportation (DOT), to rehabilitate a section of a state roadway in the Town of Brookhaven. Under the contract, Intercounty was required to obtain liability insurance naming itself as an insured and also naming the State as an additional insured party. Intercounty obtained protective liability coverage from Greenwich with effective coverage dates of January 1, 2010 through January 1, 2011.
Claimant filed his claim on December 7, 2010. On January 14, 2011 the New York State Attorney General's Office sent a letter to XL Insurance Company, along with a copy of claimant's claim, DOT Contract Number D260976 and the Certificate of Insurance requesting that the State be provided with a defense and indemnification in connection with the subject claim. On February 7, 2011, XL Insurance Company, on behalf of Greenwich, denied coverage, defense and indemnification of the State. On April 19, 2011, the State filed and served a Third-Party claim against Greenwich seeking defense and indemnification.
Greenwich concedes that the State qualifies as an insured on the OCIP however Greenwich argues that the "Injury to Workers Exclusion" Endorsement nevertheless still applies to exclude coverage to insureds, including the State, for the bodily injury alleged in claimant's claim. Greenwich continues that claimant's injuries would have been covered by the OCIP if not for the "Injury to Workers Exclusion" Endorsement. Greenwich avers that the language used in the Endorsement is not ambiguous.
A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law and conclusively disposes of the claim (Fontanetta v John Doe 1, 73 AD3d 78 [2d Dept 2010]).
"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. An insurer's duty to defend is broader than its duty to indemnify. If the allegations of the complaint are even potentially within the language of the insurance policy, there is a duty to defend" (Nationwide Insulation & Sales, Inc. v Nova Cas. Co., 74 AD3d 1297, 1298 [2d Dept 2010] [internal quotation marks and citations omitted).
In order to be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the burden of showing that the allegations contained in the claim of the underlying action fall wholly within that exclusion, that the exclusion is not subject to any other reasonable interpretation and that there is no possible factual or legal basis upon which the insurer might eventually be obligated to indemnify its insured (Exeter Bldg. Corp. v Scottsdale Ins. Co., 79 AD3d 927 [2d Dept 2010]).
The State does not argue against the existence or authenticity of the OCIP or the Endorsement to the OCIP. Rather the State asserts that Greenwich should be estopped from denying coverage since the Certificate of Insurance indicates that the OCIP provides the required coverage pursuant to the contract between Intercounty and the State. The State also contends that Greenwich has a duty to defend the State in the underlying claim since the language used in the Endorsement is ambiguous. The State argues that any ambiguities in the Endorsement should be interpreted against Greenwich to provide coverage for the underlying claim.
The Endorsement at issue herein is Endorsement #009 to the OCIP which states that the endorsement is effective as of 12:01 a.m., January 21, 2010. The Endorsement is entitled "Injury to Workers Exclusion" and states that the OCIP "does not apply to 'bodily injury' or 'personal and advertising injury' or any 'injury' or medical expenses for any person while performing or supervising work for you or on your behalf, including but not limited to any contractor, subcontractor, independent contractor, casual laborer or volunteer worker, or any employee or worker of any of the foregoing."
The Endorsement was one of a number of endorsements to the OCIP which were to take effect with the OCIP on January 21, 2010. The Endorsements were clearly set out in a list in the policy which was then followed by the endorsements themselves. The Certificate of Insurance references the January 21, 2010 effective date of the OCIP. The State cannot credibly argue that it was misled by the Certificate of Insurance or unaware of the contents of the OCIP as the policy and its effective date was clearly referenced in the Certificate of Insurance.
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]). The Court finds that the terms of the Endorsement are not ambiguous and preclude coverage for the underlying accident and lawsuit.
Therefore, for the foregoing reasons, third-party defendant's motion is granted and the third-party claim brought against Greenwich is hereby dismissed.
December 20, 2011
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims