Opinion
Index No. 903995-21
03-11-2022
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff, v. Jesse J. BURBY and Brett J. Bukowski, Defendants.
Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Attorneys for Plaintiff, (James V. Derenze and Richard J. Nicolello, of counsel), 333 Earle Ovington Boulevard, Uniondale, New York 11553 O'Connell & Aronowitz, P.C., Attorneys for Defendant Brett J. Bukowski, (Stephen R. Coffey and Cristina D. Commisso, of counsel), 54 State Street, 9th Floor, Albany, New York 12207
Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Attorneys for Plaintiff, (James V. Derenze and Richard J. Nicolello, of counsel), 333 Earle Ovington Boulevard, Uniondale, New York 11553
O'Connell & Aronowitz, P.C., Attorneys for Defendant Brett J. Bukowski, (Stephen R. Coffey and Cristina D. Commisso, of counsel), 54 State Street, 9th Floor, Albany, New York 12207
Richard M. Platkin, J.
By this action, plaintiff Metropolitan Property and Casualty Insurance Company ("MetLife") seeks a declaration that it is not obliged to defend or indemnify defendant Jesse J. Burby in a personal injury lawsuit brought against him by defendant Brett J. Bukowski. In the underlying action, Bukowski alleges that he was injured in a workplace incident in which Burby, a fellow employee, discharged a nail gun into his arm. Following joinder of issue and prior to the taking of any discovery, MetLife moves for summary judgment on its complaint (see NYSCEF Doc No. 1). Bukowski opposes the motion and cross-moves for a declaration that MetLife is obliged to defend and indemnify Burby in the underlying action.
Defendant Burby filed a pro se answer (see NYSCEF Doc No. 14), but he has not participated in the instant motion practice.
BACKGROUND
In his complaint in the underlying action (see NYSCEF Doc No. 19 ["UA Complaint"]; Bukowski v Burby , Albany County Index No. 900021-21), Bukowski alleges that Burby, a fellow Albany County employee, accosted him in the bathroom of their work facility during the workday (see id. , ¶¶ 3-4, 7). Burby, who "would often engage in horseplay and/or other pranks with other employees, which included hitting and/or unwanted touching" (id. , ¶ 5), allegedly "discharged a nail gun which caused a nail to strike ... Bukowski's right arm" (id. , ¶¶ 7-9).
Burby was criminally charged with assault in the second degree, a class D felony (see Penal Law § 120.05 [2] ), together with the misdemeanor offenses of menacing in the second degree and criminal possession of a weapon in the fourth degree (see NYSCEF Doc No. 17). Burby ultimately pleaded guilty to one count of assault in the third degree, a class A misdemeanor, for "recklessly caus[ing] physical injury" to Bukowski ( Penal Law § 120.00 [2] ; see NYSCEF Doc No. 18; see also NYSCEF Doc Nos. 10, ¶ 6; 28, ¶ 6).
Burby was covered by a MetLife homeowners insurance policy (see NYSCEF Doc No. 15 ["Policy"]; see also NYSCEF Doc Nos. 10, ¶ 7; 28, ¶ 7). The Policy obliges MetLife to provide coverage "for bodily injury and property damage to others for which the law holds you responsible because of an occurrence to which this coverage applies" (Policy, § II, Coverage F [emphasis added]). "Occurrence" is defined to mean "an accident ..." (id. , General Definitions).
The Policy further establishes certain exclusions from its personal liability coverage, including:
1. Intentional Loss. We do not cover bodily injury or property damage which is reasonably
expected or intended by you or which is the result of your intentional and criminal acts or omissions....
4. Business. We do not cover bodily injury or property damage arising out
of or in connection with your business activities. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed or implied to be provided because of the nature of the business (id. , § II, Losses We Do Not Cover, Coverage F).
The Policy also excludes coverage for "damage awards designated as punitive, exemplary, or statutory multiple damages" (id. , Coverage F, ¶ 7), as well as for the payment of medical benefits for "bodily injury to any person eligible to receive benefits required to be provided ... under any workers compensation ... law" (id. , Coverage G, ¶ 6).
Bukowski commenced the underlying action in January 2021, and MetLife disclaimed coverage to Burby on February 16, 2021 based on the above-quoted exclusions (see NYSCEF Doc No. 16 ["Disclaimer"]). MetLife is providing Burby with a conditional defense in the underlying action pending determination of this action.
DISCUSSION
A. Legal Principles
To obtain summary judgment, a movant must establish its position " ‘sufficiently to warrant the court as a matter of law in directing judgment’ " in its favor ( Friends of Animals v. Associated Fur Mfrs., Inc. , 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979], quoting CPLR 3212 [b] ). The proponent of the motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any genuine material issues of fact (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). If the movant fails to satisfy this initial burden, the motion must be denied, "regardless of the sufficiency of the opposing papers" ( id. at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). But if the movant meets its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of disputed material facts or a legal defense to the claim (see id. ). "Under New York law, an insurance policy is a contract which, like any other contract[,] must be construed to effectuate the parties’ intent as expressed by their words and purposes" Alfin, Inc. v. Pacific Ins. Co. , 735 F. Supp. 115, 118 [S.D.N.Y. 1990] [internal quotation marks and citations omitted]). "If the words of the contract are unambiguous, establishing only one meaning when read in the context of the entire policy, then a New York court must enforce the plain meaning of the words and refrain from making or varying ‘the contract of insurance to accomplish its notions of abstract justice or moral obligation’ " ( American Home Products Corp. v. Liberty Mut. Ins. Co. , 565 F. Supp. 1485, 1492 [S.D.N.Y. 1983], affd as mod 748 F.2d 760 [2d Cir. 1984], quoting Breed v. Insurance Co. of N. Am. , 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280 [1978] ). "Any ambiguity in the policy will be construed in favor of the insured, and exceptions to coverage will be narrowly read" ( JBGR LLC v. Chicago Tit. Ins. Co. , 38 Misc. 3d 1213[A], 2013 NY Slip Op 50089[U], 2013 WL 221480 [Sup. Ct., Suffolk County 2013] [citation omitted], affd 128 A.D.3d 900, 11 N.Y.S.3d 83 [2d Dept. 2015] ).
An insurer's "duty to defend is broader than its duty to indemnify. Indeed, ... an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage" ( Farm Family Cas. Ins. Co. v. Henderson , 179 A.D.3d 1193, 1193, 116 N.Y.S.3d 771 [3d Dept. 2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 915, 2020 WL 6142171 [2020] ). "If the complaint's allegations bring the claim ‘even potentially within the embrace of the policy, the insurer must defend its insured, no matter how groundless, false or baseless the suit may be’ " ( Guzy v. New York Cent. Mut. Fire Ins. Co. , 146 A.D.3d 1143, 1144, 44 N.Y.S.3d 792 [3d Dept. 2017], quoting Village of Brewster v. Virginia Sur. Co., Inc. , 70 A.D.3d 1239, 1241, 896 N.Y.S.2d 203 [3d Dept. 2010] ).
Accordingly, the "duty to defend is determined solely by comparing the allegations on the face of the underlying complaint[ ] to the terms of the policy" ( Federal Ins. Co. v. Weinstein , 2019 WL 1407455, *3, 2019 US Dist LEXIS 53165, *8 [S.D. N.Y., Mar. 28, 2019, No. 18 Civ 2526 (PAC)] ). "To avoid its duty to defend, an insurer must show, ‘as a matter of law[,] that there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy’ " ( Henderson , 179 AD3d at 1193-1194, 116 N.Y.S.3d 771, quoting Servidone Constr. Corp. v. Security Ins. Co. of Hartford , 64 N.Y.2d 419, 424, 488 N.Y.S.2d 139, 477 N.E.2d 441 [1985] ; see Allstate Ins. Co. v. Mugavero , 79 N.Y.2d 153, 162, 581 N.Y.S.2d 142, 589 N.E.2d 365 [1992] ).
B. MetLife's Motion
MetLife raises two separate, but related, arguments in moving under CPLR 3212 for a declaration of non-coverage: (1) Bukowski was not injured as the result of any "occurrence"; and (2) coverage is barred by the Policy's exclusion for intentional losses.
1. Intentional Loss
The Court begins with the "Intentional Loss" exclusion, which precludes coverage for "bodily injury ... which is [a ] reasonably expected or intended by [the insured] or [b ] which is the result of [the insured's] intentional and criminal acts or omissions" (Policy, § II, Losses We Do Not Cover, Coverage F, ¶ 1 [emphasis added]).
a. Reasonably Expected or Intended Injuries
MetLife argues that the Policy's exclusion for reasonably "expected or intended" harm was triggered by Burby's arrest and plea of guilty to assault (NYSCEF Doc No. 22 ["MOL"], p. 6). Bukowski responds that an insurer is obliged to provide a defense where, as here, the complaint in the underlying action fails to specify the type of assault by mens rea or alleges, in the alternative, that the insured acted recklessly or negligently (see NYSCEF Doc No. 26 ["Opp Mem"], pp. 17-21, citing Automobile Ins. Co. of Hartford v. Cook , 7 N.Y.3d 131, 137-138, 818 N.Y.S.2d 176, 850 N.E.2d 1152 [2006] ; Guzy , 146 A.D.3d at 1144, 44 N.Y.S.3d 792 ; and Merchants Ins. of N. H., Inc. v. Weaver , 31 A.D.3d 945, 945-946, 819 N.Y.S.2d 594 [3d Dept. 2006] ).
The first cause of action in the UA Complaint alleges that "[t]he conduct of [Burby] in discharging the nail gun in the direction of [Bukowski] or in the direction of [Bukowski's] right arm constituted gross negligence and/or reckless conduct" (UA Complaint, ¶ 12); the second cause of action alleges simple negligence (see id. , ¶¶ 16-21); the third cause of action alleges reckless and/or intentional conduct (see id. , ¶¶ 22-23); and the fourth cause of action alleges that Burby's actions, "while intentional," were "not done in such a manner that [Burby] intended the resulting injury to [Bukowski], an unintended result" (id. , ¶¶ 24-25). "Inasmuch as an assault may derive from an individual's recklessness or criminal negligence (see Penal Law § 120.00 [2], [3] ), a reasonable possibility exists that [Burby's] actions were not intentional" ( Guzy , 146 A.D.3d at 1144, 44 N.Y.S.3d 792 ). Moreover, even if Burby did intend to pull the trigger of the nail gun, "the critical issue" under this prong "is not whether the offensive contact was accidental or intentional, but whether the harm that resulted to the victim from the offensive contact was ‘expected or intended by the [insured] within the meaning of the policy's express exclusion" ( Jubin v. St. Paul Fire & Mar. Ins. Co. , 236 A.D.2d 712, 713, 653 N.Y.S.2d 454 [3d Dept. 1997] [internal quotation marks and citation omitted] [emphasis added]).
The Court concludes that MetLife has not proven that there is no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to Bukowski.
b. Intentional and Criminal Acts
The second prong of the Intentional Loss exclusion precludes coverage for bodily injury that is "the result of [the insured's] intentional and criminal acts or omissions" (Policy, § II, Losses We Do Not Cover, Coverage F, ¶ 1 [emphasis added]).
Only a handful of reported cases address an intentional-loss exclusion worded in this manner. One such case is a 2015 decision from the Supreme Judicial Court of Maine ("Maine SJC") (see Metropolitan Prop. & Cas. Ins. Co. v. Estate of Benson , 128 A.3d 1065, 1070 [Me. 2015] ), which relies on precedent of the Massachusetts Supreme Judicial Court (see Metropolitan Prop. & Cas. Ins. Co. v. Morrison , 460 Mass. 352, 951 N.E.2d 662 [2011] ).
After concluding in Benson that the insurer had not established that the insured "expected or intended" to cause injury, the Maine SJC offered the following interpretation of the "intentional and criminal acts" exclusion:
[T]he ... policy uses ‘intentional’ in the context of the phrase ‘intentional and criminal.’ By using ‘intentional’ in conjunction with ‘criminal,’ the word ‘intentional’ has a broader meaning because it is coupled with the limiting principle of criminality. This same rationale led the court in [ Metropolitan Prop. & Cas. Ins. Co. v. Morrison , 460 Mass. 352, 951 N.E.2d 662 (2011) ] to conclude that ‘intentional’ means a volitional act , without being overreaching. See Morrison , 951 N.E.2d at 671 ("By limiting the exclusion to acts that are both intentional and criminal , the Metropolitan policy poses no risk that the
exclusion may be interpreted so broadly as to effectively negate the policy's liability coverage for accidents."). In this respect, the ... policy aligns with the earlier guidance referenced in Morrison that insurers need to draft exclusions predicated on narrower language, as opposed to the sweeping, standalone concept of intentionality ( Estate of Benson , 128 A.3d at 1070 [emphasis added]).
As so construed, the Maine SJC held that coverage was excluded because the insured's volitional act of striking the victim was both intentional and criminal (see id. at 1069-1070 ). To be sure, the insured denied any intention to injure the victim or cause his death, but the insured did concede that he intended to strike the victim, an admission that led the Maine SJC to conclude that "the ‘intentional’ aspect of the second exclusion is satisfied" ( id. at 1070 ).
Although this precedent is not binding, this Court finds the decisions of the highest courts of Maine and Massachusetts to be highly persuasive and consistent with the plain language of the exclusion. In fact, in a 2019 decision, the United States District Court for the Southern District of New York employed a similar analysis in upholding an insurer's disclaimer under an identical exclusion (see Metropolitan Prop. & Cas. Ins. Co. v. Colmey , 2019 WL 6184262, *2-3, 2019 US Dist LEXIS 202408, *6-8 [S.D. N.Y., Nov. 20, 2019, No. 18 CV 9259 (VB)] ).
The Court therefore concludes that the "intentional and criminal acts" exclusion is satisfied where the victim's injuries were caused by an intentional (i.e. , volitional) act of the insured that constitutes a crime (see Benson , 128 A3d at 1070 ). Accordingly, "the next question is whether the summary judgment record [here] establishe[s] both elements" of this exclusion as a mater of law ( id. ).
This conclusion also is supported by cases involving similar facts and policy language (see e.g. Peters v. State Farm Fire and Cas. Co. , 100 N.Y.2d 634, 635, 769 N.Y.S.2d 195, 801 N.E.2d 416 [2003] ; Gruninger v. Nationwide Mut. Ins. Co. , 74 A.D.3d 1762, 1762-1763, 905 N.Y.S.2d 391 [4th Dept. 2010] ; Allstate Ins. Co. v. Swanson , 46 A.D.3d 1453, 1454, 848 N.Y.S.2d 784 [4th Dept. 2007] ).
Burby clearly engaged in a criminal act, as evidenced by his plea of guilty to the crime of assault in the third degree (see Penal Law § 120.00 [2] ; see also NYSCEF Doc Nos. 17-18).
On the other hand, the allegations in the underlying action fall short of foreclosing the possibility that Burby's discharge of the nail gun was unintentional. Burby was known to "often engage in horseplay and/or other pranks with other employees" (UA Complaint, ¶ 5), and Bukowski's first cause of action expressly alleges that "Burby was engaging in horseplay and/or was attempting to ‘prank’ [Bukowski] when he discharged the nail gun into [Bukowski's] right arm" (id. , ¶ 11). Thus, the present record leaves open the reasonable possibility that the nail gun may have accidentally discharged while Burby was engaged in a "prank" (see Guzy , 146 AD3d at 1144, 44 N.Y.S.3d 792 ; cf. Benson , 128 A.3d at 1070 ["Googins's deposition reveals a clear intent to strike Benson in the face, which caused Benson to fall over, hit his head, and die" (emphasis added)]).
2. Occurrence
MetLife next contends that the incident in which Bukowski sustained injury was not an "occurrence" within the meaning of the Policy because "assault does not qualify as an occurrence" (MOL, p. 4).
The Policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the term of the [P]olicy" (Policy, General Definitions, p. A-2). "In order to determine whether an occurrence is an accident, one must look to the casualty from the viewpoint of the insured and determine whether it was unexpected, unusual and unforeseen" ( Lachter v. Insurance Co. of N. Am. , 145 A.D.2d 540, 541, 536 N.Y.S.2d 93 [2d Dept. 1988], citing Nallan v. Union Labor Life Ins. Co. , 42 N.Y.2d 884, 885, 397 N.Y.S.2d 786, 366 N.E.2d 874 [1977] ).
Thus, MetLife may avoid coverage "only if [it] establishes as a matter of law the absence of any possible legal or factual basis to support a finding that the bodily injury at issue was, from the insured's point of view, unexpected and unintended" ( State Farm Fire & Cas. Co. v. McCabe , 162 A.D.3d 1294, 1295, 79 N.Y.S.3d 324 [3d Dept. 2018] ). "[T]he policy terms must be read ‘narrowly, barring recovery only when the insured intended the damages’ " ( Dryden Mut. Ins. Co. v. Brockman , 259 A.D.2d 947, 948, 687 N.Y.S.2d 504 [4th Dept. 1999], quoting Continental Cas. Co. v. Rapid-American Corp. , 80 N.Y.2d 640, 649, 593 N.Y.S.2d 966, 609 N.E.2d 506 [1993] ).
While MetLife correctly observes that "assault is an intentional act and as such cannot constitute an accident" ( Ward v. Security Mut. Ins. Co. , 192 A.D.2d 1000, 1001, 597 N.Y.S.2d 227 [3d Dept. 1993], lv denied 82 N.Y.2d 655, 602 N.Y.S.2d 803, 622 N.E.2d 304 [1993] ; see Tangney v. Burke , 21 A.D.3d 367, 368, 800 N.Y.S.2d 44 [2d Dept. 2005] ), the complaint in the underlying action also alleges, in the alternative, causes of action for ordinary negligence, gross negligence and recklessness as a result of a workplace "prank" gone wrong. Further, Burby was charged with intentional assault, but ultimately pleaded guilty and was convicted of reckless assault in full satisfaction of all charges (see Penal Law § 120.00 [2] ). Thus, Burby's crime of conviction did not require proof of an intentional assault (see Guzy , 146 A.D.3d at 1144, 44 N.Y.S.3d 792 ; compare United Servs. Auto. Assn. v. Iannuzzi , 138 A.D.3d 638, 639, 28 N.Y.S.3d 878 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4743310 [2016] ).
The Court therefore concludes that MetLife has failed to establish as a matter of law that the incident in which Bukowski was injured was not an "accident" or "occurrence" under the Policy.
3. Conclusion
MetLife has not met its burden of proving that there is no possible factual or legal basis upon which the incident in which Bukowski was injured may be deemed an "occurrence" under the Policy and fall outside of the Intentional Loss exclusion. Accordingly, neither of these grounds provide MetLife with a valid basis for denying Burby a defense in the underlying action, and MetLife's motion for summary judgment must therefore be denied.
A cause of action for declaratory judgment regarding "the insurer's duty to indemnify is premature and does not lie where the complaint in the underlying action alleges several grounds of liability, some of which invoke the coverage of the policy, and where the issues of indemnification and coverage hinge on facts which will necessarily be decided in that underlying action" (Hout v Coffman , 126 AD2d 973, 973 [4th Dept 1987] ; see First State Ins. Co. v. J & S United Amusement Corp. , 67 N.Y.2d 1044, 1046-1047, 504 N.Y.S.2d 88, 495 N.E.2d 351 [1986] ; Mt. Hawley Ins. Co. v. American States Ins. Co. , 168 A.D.3d 558, 559, 92 N.Y.S.3d 238 [1st Dept. 2019] ; Massa v. Nationwide Mut. Fire Ins. Co. , 74 A.D.3d 1661, 1665, 904 N.Y.S.2d 531 [3d Dept. 2010] ; Allstate Ins. Co. v. Kemp , 144 A.D.2d 853, 854, 534 N.Y.S.2d 806 [3d Dept. 1988] ). For the reasons stated above, determination of whether the incident in which Bukowski sustained injury constitutes an "occurrence" and whether coverage for his injuries is barred by the Intentional Loss exclusion must await determination of the underlying action.
C. Bukowski's Cross Motion
MetLife also relied on the Policy's "business activities," "punitive damages" and "workers’ compensation" exclusions in disclaiming coverage (see Disclaimer), but it did not move on these grounds (see MOL, pp. 3-5). These exclusions are, however, implicated by Bukowski's cross motion for a declaration of coverage (see NYSCEF Doc No. 25; see also Opp Mem, pp. 22-24). 1. Punitive Damages and Workers’ Compensation Exclusions
Neither the "punitive damages" nor "workers’ compensation" exclusions provide MetLife a basis for declining to defend the underlying action. The "punitive damages" exclusion would be implicated only if Bukowski received an award at trial "designated as punitive, exemplary, or statutory multiple damages" (Policy, § II, Coverage F, ¶ 7), and it would exclude only the indemnification of such damages. Similarly, the "workers’ compensation" exclusion of Coverage G merely is a limitation on the indemnification of medical expenses (id. , § II, Coverage G, ¶ 4), not a complete bar to coverage (cf. id. , § II, Coverage F, ¶ 6 [excluding personal liability coverage only where the workers’ compensation benefits are "required to be provided or voluntarily provided by (Burby)"]).
2. Business Activities
Bukowski argues that the "business activities" exclusion (see Policy, § II, Coverage F, ¶ 4) is inapplicable because his "injury did not arise out of or in connection with [Burby's] business activities," and "[i]t is immaterial that they were at work at the time of the incident" (Opp Mem, p. 22). To this end, Bukowski cites Metalios v. Tower Ins. Co. of N.Y., 77 A.D.3d 471, 472-473, 910 N.Y.S.2d 28 (1st Dept. 2010) for the proposition that Burby's "horseplay" or "prank" falls within an "exception to the ‘business pursuits’ exclusion in a homeowner's policy [for activities] ordinarily incident to a non-business pursuit’ " (Opp Mem, p. 22).
In Metalios , a personal injury action arising from an assault at an after-hours party at the insured's restaurant, the First Department ruled that the "business pursuits" exclusion had not been triggered due to an exception in the homeowners policy for "activities which are ordinarily incident to non-business pursuits" ( 77 A.D.3d at 473, 910 N.Y.S.2d 28 ). In holding this exception to the exclusion to be applicable, the First Department reasoned that "a social gathering is ‘ordinarily incident to a non-business pursuit’ " ( id. at 472-473, 910 N.Y.S.2d 28 ).
As MetLife observes, however, no comparable exception to the "business activities" exclusion is present in this case. The Policy categorically excludes "bodily injury ... arising out of or in connection with [the insured's] business activities ..." (Policy, § II, Coverage F, ¶ 4), and it broadly defines "business activities" to include "any full or part time activity of any kind engaged in for economic gain" (id. , General Definitions, p. A-1). Absent application of the "ordinarily incident" exception in Metalios , it seems clear that the First Department would have affirmed Supreme Court's determination that coverage was barred by the policy's "business pursuits" exclusion. After all, the First Department recognized that "a business purpose may render an otherwise social activity, such as the party ..., a business pursuit, even if the gathering was partially motivated by social interests," and one purpose of the party was to improve "employee morale" ( 77 A.D.3d at 472-473, 910 N.Y.S.2d 28 ). Thus, Metalios does not support coverage for Burby and, if anything, counsels against it.
Neither side has cited any New York cases squarely applying a "business activities" exclusion without an "ordinarily incident" exception to a workplace "prank" like the one involved here. But there is a substantial body of appellate precedent from other States strongly supporting MetLife's invocation of the "business activities" exclusion.
In Metropolitan Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass. App. Ct. 818, 793 N.E.2d 1252 (2003), a Massachusetts appeals court interpreting an identical "business activities" exclusion held that coverage was not available for a workplace prank in which the insured "poked [a fellow employee] to get her attention and said, ‘Hello.’ Startled, [the employee] fell backwards off her chair and suffered a severe back injury" ( Fitchburg , 793 N.E.2d at 1254 ). In holding that the language of the homeowners policy unambiguously excluded coverage, the appellate court explained:
Given the expansive meaning of ‘arising out of’ and ‘in connection with,’ it is clear that the business pursuits exclusion applies because the alleged battery ... is associated with, related to, and linked to [the insured's] performing work for her employer. It is incontrovertible that if [the insured] had not been performing a task for her employer she would not have been on her employer's premises at that time and place, and the injury ... would not have occurred ( id. at 1255 ).
Despite the policy's use of the term "business activities" (Fitchburg , 793 N.E.2d at 1254 ), the Massachusetts court repeatedly refers to the exclusion as one for "business pursuits" (id. at 1255 ).
Maine's highest court issued a similar ruling in Acadia Ins. Co. v. Vermont Mut. Ins. Co., 860 A.2d 390, 391-392 (Me. 2004), holding that a homeowners policy's "business" exclusion precluded coverage for a grocery store fire started by two employees who were playing with matches in a storeroom. In concluding that the "very clear" language of the "business" exclusion foreclosed coverage, the Maine SJC reasoned: "It is undisputed that [the insured] was present at the store for purposes of his employment, and that the conduct leading to the fire occurred in the workplace. Therefore, [the] losses necessarily arose out of or were in connection with [the insured's business]" ( id. at 392-393 ).
To similar effect are cases from North Carolina (see Nationwide Mut. Fire Ins. Co. v. Grady , 130 N.C. App. 292, 297, 502 S.E.2d 648, 652 [1998] [workplace assault on subordinate]), Florida (see Liberty Mut. Ins. Co. v. Miller , 549 So. 2d 1200, 1200 [Fla. Dist. Ct. App. 1989] [confrontation between doctors in a hospital "regarding the care and treatment of a mutual patient" where the insured "tugged or pulled on the stethoscope draped around (the other doctor's) neck"]) and Colorado (see Bolejack v. Travelers Ins. Co. , 64 P.3d 939, 940-941 [Colo. App. 2003] [assault at non-business location arising out of dispute at business premises the day before]).
Again, these out-of-state cases are not controlling, but the Court finds them to constitute a persuasive and consistent body of appellate precedent interpreting and applying identical (or substantially similar) policy language. Moreover, these cases rest in large part on an expansive reading of "arising out of" and "in connection with" (see e.g. Fitchburg, 793 N.E.2d at 1255 ; Acadia , 860 A.2d at 393 ), which is fully consistent with the broad construction given to these terms by the New York Court of Appeals (see Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA , 15 N.Y.3d 34, 38, 904 N.Y.S.2d 338, 930 N.E.2d 259 [2010] ["arising out of" means "originating from, incident to, or having connection with" (internal quotation marks omitted)]; Maroney v. New York Cent. Mut. Fire Ins. Co. , 5 N.Y.3d 467, 472, 805 N.Y.S.2d 533, 839 N.E.2d 886 [2005] ).
As alleged in the complaint in the underlying action: (i) Burby was employed by the Albany County Department of Public Works at the time of the incident (see UA Complaint, ¶ 4); (ii) Burby had a history of engaging in workplace "horseplay" and attempting to "prank" fellow employees (id. , ¶¶ 5-6); (iii) Bukowski was a fellow employee (see id. , ¶ 3); (iv) the incident occurred at Burby's workplace during the work day (see id. , ¶ 7); and (v) the incident involved Burby's misuse of a work tool (see id. , ¶ 8).
Had Burby not been present at his workplace for his compensated employment, he would not have had access to Bukowski and a nail gun in close quarters, and he would not have been able to engage in the "prank" or "horseplay" that caused Bukowski's injury. In other words, Burby's "business activities" provided both the occasion for the incident and the instrumentality of injury. On these facts, the incident in which Bukowski was injured plainly arose out of or in connection with Burby's "business activities."
To be sure, Burby was not carrying out the business of his employer when he was engaging in horseplay or pranking Bukowski (see UA Complaint, ¶ 18), but he was present at his workplace for his employment, which is a regular "full or part time activity ... for economic gain" (id. , General Definitions, p. A-1; see also Fitchburg , 793 N.E.2d at 1254-1255 [rejecting injured party's attempt "to apply those principles which govern the determination of vicarious liability of employers for the intentional torts of their employees"; issue is "the determination of insurance coverage, which is dependent upon the language of an insurance contract"]).
Accordingly, the branch of Bukowski's cross motion seeking a declaration of coverage must be denied. Further, given that the cross motion squarely presents the applicability of the "business activities" exclusion for the Court's determination, it is appropriate to search the record and grant summary judgment to MetLife on this issue (see Schwartz v. Ramapo , 197 A.D.3d 753, 756, 153 N.Y.S.3d 172 [2d Dept. 2021] ; see also CPLR 3212 [b] ; Dunham v. Hilco Constr. Co. , 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996] ).
CONCLUSION
Based on the foregoing, it is
ORDERED that plaintiff's motion for summary judgment is denied; and it is further
ORDERED that defendant Bukowski's cross motion for summary judgment is denied; and it is further
ORDERED that, upon searching the record in connection with the cross motion, plaintiff is awarded summary judgment on its third cause of action; and finally it is
ADJUDGED and DECLARED that plaintiff Metropolitan Property and Casualty Insurance Company has no duty to defend or indemnify Jesse Burby in the underlying action (Bukowski v Burby , Albany County Index No. 900021-21).
This constitutes the Decision, Order & Judgment of the Court.