Tech. Ins. Co. v. Main St. Am. Assurance Co.

Full title: Technology Insurance Company as Reinsurer and Successor to Tower National…

Court: Supreme Court, Erie County

Date published: Aug 21, 2020

2020 N.Y. Slip Op. 35134 (N.Y. Sup. Ct. 2020)

Opinion

Index No. 804364/2019

08-21-2020

Technology Insurance Company as Reinsurer and Successor to Tower National insurance Company and Roger S. Aumick v. Main Street America Assurance Company, Darrius Outling d/b/a Krispie Kuts, William B. Williams and Nikita Shakleford

Brian D. Barnas, Esq. Hurwitz & Fine, P.C. Joseph M. Schnitter, Esq. Schnitter Ciccarelli Mills, PLLC

DONNA M. SIWEK, JUSTICE

Unpublished Opinion

Brian D. Barnas, Esq. Hurwitz & Fine, P.C.

Joseph M. Schnitter, Esq. Schnitter Ciccarelli Mills, PLLC

DECISION

DONNA M. SIWEK, JUSTICE

Dear Counselors:

May this letter serve as the Court's Decision relative to plaintiff Technology Insurance Company as Reinsurer and Successor to Tower National Insurance Company (hereinafter "Technology") and Roger S. Aumick's motion for summary judgment seeking a declaration that Mr. Aumick is an additional insured under the liability policy issued by defendant, Main Street America Assurance Company (hereinafter "Main Street America") to Darrius Outling d/b/a Krispie Kuts (hereinafter "Outling"); that Technology is entitled to attorney's fees incurred in the defense of Aumick from a lawsuit commenced by Willie B. Williams and Nikita Shackelford; and that coverage available to Mr, Aumick under the Main Street America policy is primary. This letter also resolves defendant Main Street America's Cross Motion for summary judgment seeking an order declaring that Main Street America does not owe additional insured coverage to Roger Aumick, or in the alternative, declaring that the policies of insurance issued by Tower (Technology) and Main Street America afford concurrent coverage to Mr. Aumick.

After reviewing the papers submitted and relevant case law and after considering oral argument of counsel heard by the Court on June 25, 2020 and on July 22, 2020, it is the Court's Decision as follows:

Aumick is an Additional Insured under the Main St. America Policy

Plaintiffs have established as a matter of law that Mr. Aumick is entitled to coverage as an additional insured under the Main Street America policy which was issued to Mr. Outling d/b/a Krispie Kuts for the claim made by Willie B. Williams for injuries he claims to have suffered in the driveway of 1371 Kensington Avenue on February 18, 2014, when he fell while leaving the barbershop operated by Mr. Outling.

The additional insured endorsement in the Main Street Policy provides coverage for Aumick "only with respect to liability arising out of the ownership, maintenance or use of that part of the premises" leased to Outling.

We agree with plaintiffs that Mr. Williams' injuries and Aumick's potential liability arise out of the maintenance or use of the premises leased by Outling. Mr. Williams, a business invitee, testified that he left the barbershop and walked along the sidewalk in front of the barbershop and down the apron of the driveway of the leased premises where he claims that his foot became lodged in a hole located on the apron that was camouflaged by snow. In this regard, the facts here are similar to Janel Mgt. Corp. v. Pacific Ins. Co., 55 A.D.3d 313 (1^st Dept. 2008).

Furthermore, we reject defendant's contention that the driveway was not part of the leased premises. Under the lease between the owner Aumick and tenant, Outling, Outling was solely responsible for the removal of snow and ice from the stairs, porches, driveway and connecting sidewalks. While the lease did not permit Outling to park in the driveway, it did not prohibit Outling from using the driveway, and the lease clearly and unambiguously states that Outling was responsible for driveway snow removal. See, Pixley Dev. Corp. v. Erie Ins. Co., 174 A.D.3d 1415 (4^th Dept. 2019); Tower Insurance Co. of New York v. Leading Ins. Co. Ltd., 134 A.D.3d 510 (1^st Dept. 2015); Mack-Cali Realty Corp. v. NGM Ins. Co., 119 A.D.3d 905 (2d Dept. 2014). We reject defendant's contention that Outling's testimony that he did not remove snow and ice from the driveway creates a question of fact. Regardless of what Outling chose to do, the terms of the lease clearly required Outling to remove snow from the driveway.

To the extent that Williams testified that he did not see the hole in the driveway apron because it was covered with snow, there is a colorable claim that Outling's failure to remove the snow was a substantial factor in causing Mr. William's injuries. See, Regal Constr. Corp v. Natl Union Fire Ins. Co., 15 N.Y.3d 34 (2010). We agree with plaintiffs that Mr. Aumick's potential liability is claimed to arise out of Mr. Williams' use of the property as a client at the Outling's barbershop, and at least in part, arises out of Mr. Outling's failure to remove the 2-4" of snow from the driveway apron that obscured Mr. Williams' vision of the hole in the concrete of the apron. There is a direct connection between the "Underlying Incident" and Mr. Outling's maintenance and use of the premises. Plaintiffs are not required to eliminate all other potential causes of the underlying incident to establish Aumick's entitlement to coverage. The showing required is "only that there be some causal relationship between the injury and the risk for which coverage is provided. See, Regal, supra. For these reasons, Aumick is entitled to a defense and indemnification under the Main Street America policy as an additional insured.

The Coverage Afforded to Aumick under the Main Street America Policy is Primary

We further agree with plaintiffs that the coverage afforded to Aumick under the Main Street America Policy is primary, and the Tower/Technology Policy is excess. Both the Tower/Technology and Main Street America policies were issued as primary policies with identical Other Insurance clauses. The Tower/Technology Policy contains an additional provision that specifically provides that it is excess over [A]ny other primary insurance available to Mr. Aumick covering liability for damages arising out of the premises or operations for which Aumick has been added as an additional insured by attachment of an endorsement. Thus, the excess clause is triggered in the Tower/Technology Policy but not the Main Street America Policy.

We agree with plaintiffs that the Fourth Department's Decision in Harleysville Ins. Co. v. Travelers Ins. Co., 38 A.D.3d 1364 (4th Dept. 2007) is directly on point and requires this Court to find that the Main Street America Policy is primary and must be exhausted before Technology is required to contribute.

Based on the foregoing, Plaintiffs motion for summary judgment pursuant to §3212 is granted, declaring that Main Street is required to defend and indemnify Mr. Aumick in connection with the claims brought by Willie B. Williams and Nikita Shackleford arising out of the Underlying Incident and the Underlying Action styled Willie B. Williams and Nikita Shackleford v. Darius Outling D/B/A Krispie Kuts and Roger S. Aumick; Index No: 801320/2016 Supreme Court, Erie County; Technology is entitled to reimbursement for the reasonable attorneys' fees it has incurred and continues to incur in the defense of Aumick in the Underlying Action; that the Main Street America policy provides coverage for Aumick for the Underlying Incident and Underlying Action on a primary and non-contributory basis; and the Tower Policy provides excess coverage to Aumick for the Underlying Incident and Underlying Action. Main Street's cross Motion is denied in its entirety.

Submit Order and Judgment on Notice.