Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2024.

New York Insurance Coverage Law Update 2024

Second Department Upholds Summary Judgment To Insurer Finding Assault Not Covered Even Though Labeled By Claimant As Negligence

The insured punched and kicked the Claimant, causing injuries. The Claimant sued the insured alleging that the insured assaulted him, and negligently and recklessly caused his injuries. Nationwide Mutual Fire Insurance Company filed a declaratory judgment action

Northern District Denies Insurer’s Motion For Summary Judgment Finding Questions Of Fact Whether Insured Expected Or Intended Claimant’s Injuries  

The insured admittedly punched and threw the claimant to the ground, but the insured maintained during her plea for reckless assault in criminal court that the claimant was the aggressor, she acted in self-defense, and

Southern District Holds Insured Not Entitled To Judgment On Pleadings As To Duty To Defend Because Extrinsic Evidence May Show Duty Is Terminated

Color Techniques, Inc. (CTI) sold ingredients used in cosmetic formulations and was insured by Ironshore Specialty Insurance Company under a series of Environmental Protection Insurance Coverage Package policies. The insurer sued CTI,

Fourth Department Finds That Insurer Failed To Meet Its Burden Of Proving That Insureds Failed To Cooperate

Merchants Preferred Insurance Company filed a declaratory judgment action in New York seeking a declaration that it had no duty to defend or to indemnify its insureds in an underlying Florida personal injury action arising from a

Second Circuit Applies “But For” Test To Exclusion In Finding No Coverage Under D&O Policy

Paraco Gas Corporation purchased an insurance policy for Directors, Officers and Private Company Liability (“D&O”) from Ironshore Indemnity, Inc. that covered certain acts of Paraco’s officers and directors. Paraco shareholders filed a derivative action against two Paraco officers alleging that

Second Department Finds Duty To Defend But No Bad Faith And That Insurer Did Not Have An Obligation To Advise Insured Of Right To Independent Counsel

The parent of an infant sued Kim Eichle for Eichle’s alleged negligence in serving alcohol to her houseguest, Jacob Russo, who allegedly assaulted the infant, and for negligence

Lost Business Income Not Covered Because Not Caused by Direct Physical Loss Or Damage, Third Department Finds

87 Uptown Road, LLC owned an apartment complex with 11 apartment buildings in Ithaca, New York, which were insured by Country Mutual Insurance Company. A fire destroyed one building (Building D), and the owner made a claim for

Southern District Rules That Insured Cannot Recover Its Attorney’s Fees for Its Coverage Action

The insured, Match Group, LLC, brought a coverage action against its insurer, Beazley Underwriting Limited, and obtained a judgment against Beazley that Beazley appealed. In turn, the insured moved to recover the attorney’s fees and expenses it incurred in its

Third Department Upholds Summary Judgment to Insurer Based on Material Misrepresentation by Insured in Insurance Application

Plaintiff loaned money to his employee to purchase a home, and the loan was secured by a mortgage. When the employee failed to pay the loan and to insure the home, Plaintiff obtained a landlord package policy from

New York’s Highest Court Holds That Restaurants’ Business Losses from Coronavirus Not Covered

The insured, Consolidated Restaurant Operations, a company that owns and operates dozens of restaurants, obtained a commercial property policy from Westport Insurance Company. Subject to certain exclusions, the policy covered “all risks of direct physical loss or damage to insured property” and

Second Circuit Holds That Malpractice Insurer Has No Duty to Defend or to Indemnify Lawyer Because Of Business Enterprise Exclusion

 Associated Industries Insurance Company sued its insureds, a lawyer, and his former law firm, seeking a declaration that it had no duty to defend or to indemnify an underlying lawsuit brought by their former client.

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2023.

New York

Second Circuit Finds That Criminal Activities Exclusion Defeats Coverage For Disability Benefits

Jason Brand made a claim for disability benefits under his disability policy with Principal Life Insurance Company on the basis that he was totally disabled by extreme anxiety that began in July 2014 after a warrant was served on him by the

New York’s Highest Court Holds That Portion Of Premium Need Not Be Refunded For Death During Policy Period Of Universal Life Policy

The Joan C. Lupe Family Trust purchased a policy under which Lincoln Life and Annuity Company of New York agreed to provide universal life insurance coverage with Joan C. Lupe as the

Court Finds No Coverage For Stolen Jewelry Based On Conveyance Clause And Unattended Auto Exclusion

 The insured, a jewelry business, filed a coverage action against Certain Underwriters at Lloyd’s of London, which denied coverage to the insured under a policy purchased for the insured’s jewelry.  The insured’s complaint alleged that after attending a marketing event

Eastern District Finds That Insurer’s Delay In Disclaiming After Insured Gave Notice Of Occurrence Precluded Insurer’s Reliance Upon Exclusions

Two employees of Extreme Residential Corp. were involved in a construction accident on July 30, 2019, and they sued several entities involved in the project who, in turn, filed a third-party action against Extreme. Extreme’s insurer,

Western District Holds That Employee Exclusion Does Not Preclude Coverage To Additional Insureds For Claim By Named Insured’s Employee

Employees of a subcontractor were injured on a construction project, and they sued the owner and the general contractor.  The subcontractor’s excess insurer, Mt. Hawley Insurance Co., disclaimed additional insured coverage to the owner and general

Southern District Holds That Contractor’s Carrier Has Duty To Defend ConEd Even Though Contractor’s Work Ended Months Before The Accident

 A pedestrian tripped and fell on a Bronx sidewalk, and she sued the owner of the adjacent property. In turn, the owner brought a third-party action against ConEd, the utility company that had opened

Second Circuit Finds That Subcontract Did Not Incorporate GC’s Obligation To Obtain Additional Insured Coverage For Owners And That GC’s Primary Policy Was Primary To GC’s Additional Insured Coverage Under Sub’s Umbrella

The owners hired a general contractor (GC) insured by Amerisure to build a movie theatre, and the GC hired a masonry subcontractor (Sub)

Fourth Department Holds That Ensuing Loss Exception To Faulty Workmanship Exclusion Applies To Restore Coverage For Water Loss

The insureds owned a house covered by an all-risk homeowner’s insurance policy issued by Erie Insurance Company of New York that provided coverage for damage to the house unless specifically excluded.  The policy contained an exclusion for

Second Circuit Holds That Absolute Auto Exclusion Clearly Precludes Coverage

The insureds, a country club and motorcycle group, held an annual motorcycle rally.  They were sued by two motorcycle riders who were struck by an automobile as the riders and automobile were entering the premises of the club to attend the rally.  Covington Specialty denied

Southern District Finds That Exclusion In HO3 Form Precludes Coverage Even Though Form Inadvertently Omitted From Copy Of Policy Sent To Insured

Scottsdale Insurance Company issued a homeowner’s policy to 232 Dune Road LLC (insured) for a vacant oceanfront property in Quogue, New York where the insured was building a home.  On March 26, 2020,

Court Holds That Insurer Was Not Volunteer And May Seek Subrogation From Other Insurer But That Other Insurer’s Policy Is Excess

Walter Breitenbach, who was insured by Adirondack Insurance, struck a pedestrian with his automobile while driving within the scope of his employment with the Town of Riverhead, which was insured by ACE Insurance.  The

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2022.

New York Insurance Coverage Law Update 2022

Southern District Refuses To Use Extrinsic Evidence “Bound Up With Merits” Of Underlying Action To Defeat Duty To Defend

622 Third Avenue LLC filed a declaratory judgment action against Harleysville Worcester Insurance Company and others, seeking a declaration that Harleysville must defend 622 Third Avenue as an additional insured in an underlying personal injury action

First Department Finds That Excess Policy May (Or May Not) Be Triggered Before Primary Policy In Another Year

Burlington Insurance Company issued primary policies to a contractor in 2013-14 and 2014-15, and Century was the excess insurer for 2013-14.  The contractor was sued for property damage resulting from its construction work during an unspecified time,

Court Finds That Defense Documents Must Be Produced Because Placed “At Issue” by Late Notice

In this declaratory judgment action, American Empire Surplus Lines Insurance Company sought insurance coverage on behalf of its insured contractor from certain excess insurers.  The excess insurers were not placed on notice until six years after the filing of the

Southern District Finds That Insured’s Owner And CEO Not Entitled To SUM Coverage Because Not Acting In Scope Of His Duties For Insured

Majestic Rayon Corporation, a family business that manages the family’s real estate, obtained an insurance policy from Hartford Accident and Indemnity Company that included supplementary uninsured/ under-insured motorists (“SUM”) coverage for any

Court Finds That Named Insured “Executed” Contract With Additional Insured, Triggering Duty To Defend

Stoncor, a flooring systems manufacturer, sent Surfacesys a proposed Master Installation Agreement to become an exclusive floor installation contractor. The Agreement required that Surfacesys list Stoncor as an insured on its insurance.   The Agreement was returned to Stoncor via fax purportedly

Southern District Holds That Claim For Unjust Enrichment Not Covered Claim For “Property Damage”

The owners of a Manhattan apartment hired Zale Contracting to renovate their apart-ment.  After the apartment’s sprinkler system failed, Zale, with the owners’ consent, allegedly repaired the damage caused by the failure and purchased and installed new materials, resulting in additional

Second Circuit Holds That Insurer Precluded From Relying On Exclusions Because Unreasonably Delayed Disclaiming While Basis Was, Or Should Have Been, Apparent

In December 2015, Luis Alberto was working on a construction project at a building owned by the insured when a wall collapsed, causing him to fall to his death.  In December 2017, Alberto’s

Northern District Holds That Late Notice Bars Coverage Under Property Policy

In late 2016, a roofing contractor stepped through the insured’s roof resulting in damage to the roof and internal water damage.  The insured did not file a claim with its property insurer until early 2018, more than a year later.  The insurer, Acadia Insurance

First Department Affirms That Business Interruption From COVID-19 Not Covered

The insured purchased a commercial property policy that included business interruption coverage for its restaurants.  The restaurants were forced to suspend indoor dining operations because of COVID-19 and lost tens of millions of dollars in revenue.  The insured made a claim with its insurance company

Second Department Holds Landlord Covered As Additional Insured Under Tenant’s Policy Where Tenant’s Employee Injured In Freight Elevator Used By Tenant

Bed Bath & Beyond leased third-floor retail and office space at a shopping center in Queens, and its employee was injured while using a freight elevator during his employment.  The employee sued the owner

Fourth Department Holds Landlord Covered As Additional Insured Under Tenant’s Policy For Accident On Driveway Of Leased Premises

Technology Insurance Company, as the liability insurer for a landlord, filed a declaratory judgment action against Main Street America Assurance Company, as the liability insurer for the landlord’s tenant, seeking a declaration that Main Street had a

New York’s Comprehensive Insurance Disclosure Act Amended

On February 24, 2022, New York’s Comprehensive Insurance Disclosure Act was amended to remove some of the more controversial requirements, including that defendants, third-party defendants, and counterclaim defendants (the “disclosing party”) produce insurance applications and information about other lawsuits that may have eroded the limits of policies being

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2021.

New York Insurance Coverage Law Update 2021

New York Enacts Comprehensive Insurance Disclosure Act

On December 31, 2021, New York’s Governor Hochul signed into law the Comprehensive Insurance Disclosure Act, that requires defendants, third-party defendants, and defendants on cross-claims and counterclaims (the “disclosing party”) to produce copies of all primary, umbrella and excess insurance policies that may satisfy part or all of

New York Court of Appeals Holds That Disgorgement Payment Under SEC Settlement Not Excluded As A Penalty Imposed By Law

The Securities and Exchange Commission (SEC) alleged that Bear Stearns facilitated late trading and deceptive market timing practices by its customers in connection with the purchase and sale of mutual fund shares.  Bear Sterns sought

Second Circuit Holds That General Contractor’s “True Excess” Policy Covers Owner Before Owner’s Primary Policy Because Of General Contractor’s Contractual Indemnity Obligation to Owner

The Long Island Railroad on behalf of the Metropolitan Transit Authority (“Owner”) contracted with a general contractor (“GC”) for a construction project on a railroad bridge; and a subcontractor’s employee was

Court Holds That Contractor’s Insurer Must Defend Owner As Additional Insured In Personal Injury Action Filed By Subcontractor’s Employee

A premises owner hired a contractor to perform an oil-to-gas boiler conversion, and the contractor subcontracted the work.  The subcontractor’s employee was injured while working on the project and sued the owner.  The owner sought additional

Court Dismisses Claims Against Insurer For Bad Faith Failure To Settle, And For Consequential And Punitive Damages

Scottsdale issued a policy to Watershed Ventures, LLC, which included Directors and Officers Liability Coverage.  Scottsdale filed a declaratory judgment action seeking a declaration that Patrick McGrath was not covered under the policy for a claim against McGrath. 

Court Declines To Rescind Policy Based On Issues Of Fact As To Materiality Of Alleged Misrepresentations

Union Mutual disclaimed coverage for a fire loss at its insured’s restaurant and sought to rescind its policy based upon the insured’s alleged misrepresentations in its application that it did not have “open flame cooking” or a Single Room

Southern District of New York Holds That COVID-19 Claim Not Covered

Café du Soleil (the Café) operates a small Manhattan restaurant that suffered financial losses during the COVID-19 pandemic and suspended operations following state and municipal shutdown orders.  XL Insurance issued the Café a commercial property policy that provided business interruption coverage in the event

First Department Finds Exterior Work Over Two Stories Exclusion Did Not Apply To Accident From Work On Lower Floors

Adelphi University hired a general contractor for a construction project to build, from the ground up, a three-story building.  The employee of a structural steel and iron work sub-subcontractor was injured when he fell from the

WDNY Follows Other New York Courts Holding That COVID-19 Losses Are Not Covered

The insured operated a martial arts and fitness business in Buffalo, New York, that sustained losses in revenue when its business closed due to the COVID-19 pandemic and related executive orders. The insured sought coverage under its commercial property policy.  The United

Court Finds That Subcontractor’s Insurer Owed Additional Insured Coverage Under “Caused, In Whole Or In Part, By” Endorsement Because Subcontractor Found More Than 0% Liable

Kenneth Jacobson was injured on a construction site, and he sued the owner of the premises and the general contractor (“GC”).  The owner and GC filed a third-party action for

Second Department Holds Insurer Has No Duty To Defend Or To Indemnify Insured In Underlying Trademark Infringement Action

The insured was sued in an underlying action seeking damages and injunctive relief for alleged trademark infringement.  The insured tendered the action to its CGL insurer which disclaimed. The insured settled the underlying action and sued its

Federal District Court Finds That Virus Exclusion Precludes Coverage For COVID-19-Related Losses

A Manhattan law firm sued Midvale Indemnity Company seeking coverage under the firm’s commercial property insurance policy for losses caused by stay-at-home and social distancing directives issued by New York State in response to the COVID-19 pandemic. The law firm claimed that the

Southern District Of New York Holds That Insured Not Entitled to Coverage For Losses Resulting From COVID-19

Sparks Steakhouse in New York City filed a coverage action against its insurer, Admiral Indemnity, alleging that Admiral breached its obligation to provide coverage under its all-risk commercial property policy for losses resulting from governmental orders to close

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2020.

New York Insurance Coverage Law Update 2020

Court Rules That Assault And Battery Exclusion Precludes Coverage For Slip And Fall On Spilled Drinks During Melee

C&S Franklin Realty (a landlord) filed a declaratory judgment action against the insurer of C&S’s tenant (a nightclub), seeking additional insured coverage for an underlying personal injury action alleging a slip and fall on spilled drinks “due

Federal District Court Finds That Gender Discrimination And Intentional Infliction Of Emotional Distress Claims Were Not Claims For Covered “Occurrences”

Claimants sued Waiting Room Solutions alleging various causes of action arising out of an employee placing a video camera in its women’s restroom and Waiting Room’s handling of the employee’s actions.  Waiting Room’s liability insurer,

Court Holds Employee Of Contractor Exclusion Precluded Coverage For Accident That Would Not Have Occurred “But For” Contractor’s Work

Pierce Management, a general contractor, subcontracted with RJK Electric for electrical work on a drive-thru at a Starbucks.  Pierce’s project manager was allegedly injured while walking to his car in the parking lot by a grinder

Federal District Court Denies Insured’s Request To Add Claim For Bad Faith And Consequential Damages Based On Insurer’s Denial Of Coverage

In this declaratory judgment action, the insured filed a motion for leave to add a new claim against his insurer for its alleged “bad faith” failure to indemnify him in the underlying bodily injury

New York Court Reaffirms That Contractor’s Defective Work Is Not A Covered “Occurrence”

Anthony and Sandra Tamer hired RD Rice Construction (“Rice”) as a general contractor to gut and rebuild their combined residential co-operative units. After Rice and its subcontractors completed the renovation work, the Tamers complained of a draft so Rice returned and installed

United States District Court Orders Insured To Produce Certain Pre-Litigation Documents But Not Others Deemed Work Product

99 Wall sued Allied World seeking coverage under a property policy for water losses at 99 Wall’s condominium complex. 99 Wall withheld certain documents concerning communications between 99 Wall and its consultants in connection with the adjustment of

Second Circuit Finds Coverage Where Insurer Unreasonably Delayed In Seeking Rescission and Its Exclusions Did Not Apply

WW Trading was sued and sought coverage from United States Liability Insurance Company (USLI) which sought to rescind its policy on the basis of WW Trading’s alleged misrepresentations in its application. The Second Circuit affirmed the district court’s

District Court Rejects Insurer’s Attempt To Rely On Extrinsic Evidence To Deny Defense To Additional Insureds

The City University of New York (“CUNY”) hired Genesys Engineering, PC to perform construction work at the Herbert H. Lehman College in the Bronx.  In turn, Genesys hired A.K.S. International Inc. to perform certain work at the project, including

Policy Endorsement Waived Contribution From Additional Insured’s Insurer, First Department Decides

A claimant sued the New York City Housing Authority (“NYCHA”) for personal injuries, and NYCHA was defended as an additional insured under a policy issued to Women Work Construction Corp. (“WWC”). WWC’s insurer asserted that NYCHA’s insurer had to contribute to NYCHA’s defense. The

Court Rules “C/O” Company In Contract Not An Additional Insured

A construction worker sued Blue Woods Management Group, Inc. alleging that he was injured while working at premises owned by Blue Woods. Blue Woods sought additional insured coverage under its general contractor’s policy, which provided such coverage “where required by written contract,” and the insurer

Southern District Of New York Issues Rulings On Missing Policies, Aggregate Limits And Allocation In “Long-Tail” Asbestos DJ

Danaher Corporation asked the United States District Court for the Southern District of New York to decide various insurance coverage issues as to underlying silica and asbestos-related bodily injury claims asserted against Chicago Pneumatic Tool Company, which

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2019.

New York Insurance Coverage Law Update 2019

Tenant’s Insurer Must Defend Shopping Center Owner As Additional Insured In Trip-And-Fall Suit, Eastern District Of New York Decides

The claimant allegedly tripped and fell on the sidewalk while walking into a restaurant operated by Vintage Steakhouse, LLC.  Vintage leased the restaurant, which was in a shopping center, from Amelia Associate’s Inc.  Vintage’s insurer refused

Court Rejects Additional Insured Coverage For Live Nation

Claimant was allegedly injured while assembling an advertising structure for Best Buy at Long Island’s Jones Beach Theatre when a Live Nation employee negligently drove a fork-lift into the metal trussing on which the claimant was standing.  Claimant sued Live Nation, which sought additional insured coverage under

Insurers Need Not Prove Fraud To Deny No-Fault Payments To Healthcare Providers, New York Court Of Appeals Decides

After insurance companies stopped paying no-fault claims submitted by Andrew Carothers, M.D., P.C., a professional service corporation, as assignee, the PC sued the insurers. The insurers asserted that, under State Farm Mut. Auto. Ins. Co. v. Mallela,

Third Department Affirms Dismissal Of Coverage Case Filed More Than 24 Months After Loss

After a building in the city of Troy was burglarized, the building owner sought coverage for the damage.  On September 18, 2014, the insurer denied the claim because of the policy’s lack of coverage for theft and water damage.  On October

No Advertising Injury Coverage For Suit Against Fashion Designer, Southern District Of New York Concludes

A New York fashion designer and related parties sued for allegedly violating the terms of a license agreement asked the United States District Court for the Southern District of New York to compel their insurer to defend them. The court

Owner Deemed Additional Insured Under Subcontractor’s Insurance Policy 

The owner of a construction project was sued for injuries allegedly suffered by a subcontractor’s employee.  The general contractor’s contract with the subcontractor obligated the subcontractor to obtain additional insured coverage for the owner.  The court held that the owner was covered as an additional insured under

First Department Finds Additional Insured Coverage Under Policy Issued To Claimant’s Employer

United Interior Renovations contracted with and obtained additional insured coverage for All State Interior Demolition under United’s policy for bodily injury caused, in whole or in part, by United’s acts or omissions. United’s employee was allegedly injured and sued All State, but

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2018.

New York Insurance Coverage Update — Compilation 2018

Second Circuit Finds Duty To Defend Alleged Advertising Injury Claim

Buyer’s Direct Inc. asserted that a slipper manufactured by High Point Design, LLC, infringed on Buyer’s Direct’s design patent. High Point sought a declaratory judgment that its slipper did not infringe, and Buyer’s Direct counterclaimed for patent and trade dress infringement. High Point sought defense

Assignee Of Winning Bid At Foreclosure Sale Not Entitled To Insurance Proceeds For Water Damage To The Property

A bank that was the highest bidder at a foreclosure sale assigned its bid to Wilmington Savings Fund Society, and Wilmington received a referee’s deed for the property.  After a water pipe burst in the dwelling located

No Additional Insured Coverage For School District Under Named Insured’s Policy Where Named Insured Did Not Cause Its Employee’s Injury, 4th Department Rules

An employee of a company that contracted to provide janitorial services to a school district was allegedly injured when she slipped on snow or ice in the school parking lot. The injured

Stop Work Order Deemed Insufficiently Coercive Or Adversarial To Be A “Suit”

After excavation work began on a property in Manhattan, the New York City Department of Buildings issued a stop work order to the construction manager and property owners because of damage to an adjacent building. The construction manager and owners sought a defense

Court Rules That Series Of Dishonest Acts Allegedly Committed By Insured’s Employee Constituted One “Occurrence” Under Policy Language

The insured company alleged that, between 2012 through 2017, a bookkeeper stole about $500,000 by making unauthorized purchases with company credit cards, making unauthorized withdrawals from the company’s line of credit, and taking company inventory for personal

Insurers That Defended Building Owner For Years Without Reserving Right To Disclaim Were Estopped From Denying Coverage Just Before Trial, Second Department Decides

In February 2008, a building owner’s insurers agreed to defend and to indemnify the owner in a personal injury action. The insurers learned of a defense to coverage no later than 2009

Insured’s Misrepresentation About His “Earned Annual Income” Dooms Widow’s Bid For Life Insurance Benefits 

The insured’s application for a $150,000 term life insurance policy indicated that his “earned annual income” was $50,000.  The insured died within the two-year contestable period, and his widow claimed the policy proceeds.  The insurer determined that the insured reported $0

Court Holds Additional Insured Not Entitled To Indemnification Without Proof Named Insured Was A Proximate Cause Of Injury

A subcontractor’s employee sued the construction manager for a Manhattan project for injuries the subcontractor’s employee allegedly sustained while working on the project. The construction manager sought a defense and indemnity as an additional insured under the

Appellate Division Remands Case To Determine If § 3420(d) Triggered By Insured’s “Substantial Business Presence” In New York

A subcontractor’s employee sued the general contractor for alleged injuries sustained while working on a New York City subway station construction project. The subcontractor’s insurer disclaimed additional insured coverage to the general contractor based on an exclusion,

Court Finds That Professional Services Exclusion Barred Additional Insured Coverage To Property Owner And Contractor

After a worker was fatally injured at a construction site, the owner of the property and a contractor hired by the owner to construct a hotel at the site brought an action seeking additional insured coverage under an insurance policy

Second Department Finds Questions Of Fact As To Duty To Indemnify School District And Officials In Religious Discrimination Case

Five students sued a school district and its administrators alleging that they violated the students’ civil rights by being deliberately indifferent to anti-Semitic harassment and discrimination perpetrated by other students against them. The district’s insurer provided

First Department Rejects Additional Insured Coverage Where Named Insured’s Acts Or Omissions Were Not Proximate Cause Of Injury

A security guard employed by Protection Plus Security Corporation sued the Manhattan School of Music, alleging that he slipped and fell on a recently mopped floor while working at the school. The school sought coverage as an

Second Circuit Rules Professional Services Exclusion In D&O Policy Barred Coverage For Facebook Investors’ Claims Against NASDAQ

After conducting the initial public offering for Facebook, Inc., the NASDAQ public stock exchange was sued. NASDAQ settled for $26.5 million. An insurer that issued a directors and officers policy to NASDAQ contended that the claims against NASDAQ

Auto Policy Covers Suit Alleging Passenger Tripped After Bus Arrived At Location, First Department Says 

After a bus arrived at its destination, the driver unloaded the luggage. A passenger allegedly tripped while looking for her suitcase and sued the bus company. The Appellate Division, First Department, held that the bus company was entitled to a

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2017.

New York Insurance Coverage Update — Compilation 2017

General Contractor Obtains Additional Insured Coverage Under Policy Issued To Subcontractor That Was “Proximate Cause” Of Damage

A fire occurred on the Throgs Neck Bridge while the roadway deck was being replaced. The general contractor sought additional insured coverage under an insurance policy issued to its subcontractor and maintained that the fire damage was “caused,

New York Federal Court Upholds Insurer’s Decision To Void Policy For Material Misrepresentation In Application

An application submitted by the insured’s broker for insurance on an apartment building in the Bronx indicated that the building was not vacant and was not undergoing any major renovations. The policy was issued and the building was subsequently vandalized.

Appellate Division Rules That Policy Covered Loss Caused By A Defect That Began Before Policy’s Effective Date

The insured made a claim under its insurance policy for losses that resulted when a power-generating turbine was taken out of operation due to excessive vibrations. The vibrations were found to have been caused by a crack in

Insurer Failed To Demonstrate Insured’s Noncooperation, Second Department Rules

The claimant sued ML Specialty Construction, Inc., alleging that her property had been damaged by construction work performed by ML on a neighbor’s property.  ML’s insurer retained counsel to defend ML. The insurer disclaimed coverage on the ground that ML stopped cooperating after five years, and

“Vertical Exhaustion” Of Primary Policies Triggered Excess, But Excess Policies’ Prior Insurance Provision Limited Insured’s Recovery, Second Circuit Holds 

Olin Corporation, a chemical manufacturer, contended that an excess insurer that had issued three consecutive annual policies had to indemnify it for environmental con-tamination that had taken place over a number of years at several manufacturing

No Additional Insured Coverage Where Alleged Accident Occurred Off Leased Space

An employee of Linea 3 allegedly was injured in the parking lot while walking from his car to space Linea leased in a building owned by Atlantic Ave. Sixteen AD, Inc. The employee sued Atlantic, which sought additional insured coverage under Linea’s policy. The

New York Court Of Appeals Limits Scope Of Additional Insured Coverage 

An excavator contracted with the New York City Transit Authority (“NYCTA”) to perform tunnel excavation work on a subway construction project. Its excavation machine touched a live, buried electrical cable, resulting in an explosion and injury to the claimant. The claimant sued the City,

Court Rejects Insurers’ Defenses To Coverage For Bear Stearns’ Settlement With SEC

Bear Stearns agreed to pay $250 million to resolve claims by the Securities and Exchange Commission that it had facilitated its customers’ late trading and market timing practices in its performance of clearing services on their behalf.  Of that amount, part was labeled

Court Holds Insurer Did Not Establish Insured’s Failure To Cooperate

An insurer’s disclaimer based on the insured’s lack of cooperation was challenged in court. The Appellate Division, Second Department, found that the insurer made diligent efforts that were reasonably calculated to obtain its insured’s cooperation. However, the court ruled that the

Claims-Made Policy Afforded Insured 60 Days After End Of Term To Notify Insurer 

An employee of New York Institute of Technology (“NYIT”) sued NYIT for defamation on February 26, 2009, and NYIT received notice of the action on August 6, 2009. NYIT’s claims-made-and-reported insurance policy ended on September 1, 2009. NYIT notified its insurer of

No-Fault Insurer Timely Requested EUO Of Provider After Conducting Assignor’s EUO, Court Rules

On December 19, 2013, after receiving a health care provider’s bills requesting payment of assigned no-fault benefits, the insurer conducted a timely examination under oath (“EUO”) of the assignor. On January 9, 2014, believing that the assignor’s testimony raised questions regarding the

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2016.

New York Insurance Coverage Update — Compilation 2016

“Contractual Privity” Not Required For Project Consultant To Be “Additional Insured,” New York Trial Court Rules

Rockefeller Group Development Corp-oration, as an agent for 1221 Avenue Holdings LLC, contracted with A. Best Contracting Co., Inc. (“Abestco”) to have Abestco perform construction work at 1221 Avenue of the Americas in Manhattan. The contract allegedly required that

Sagging Roof Was Not A Collapse, Court Confirms

The owner of a building in the Bronx sought coverage under its property policy for a damaged roof, claiming it “collapsed,” a covered cause of loss under the policy.  The court granted the insurer’s motion for summary judgment, finding that “no part of the premises fell to

Private Dispute Over Policy Coverage Did Not Support Insured’s GBL § 349 Claim Against Insurer, Fourth Department Rules

A building owner sued its insurance company for deceptive acts and practices under New York General Business Law § 349, alleging that the insurer had retained a non-engineer to conduct an investigation into its claim for damage to its building and

Insured Could Not Recover Its Attorneys Fees From Insurer, Fourth Department Decides

A construction company sued its insurer, alleging that it had breached its coverage obligations under a commercial auto insurance policy. The trial court awarded the construction company the attorneys fees it had incurred in prosecuting the action, and the insurer appealed. The Appellate

Insurer Need Not Indemnify Insured For Property Damage Attributable To Periods When Liability Insurance Was Unavailable

Keyspan Gas East Corporation brought a declaratory judgment action seeking indem-nification for the costs of environ-mental clean-up at two gas plants. The Appellate Division, First Department, deciding an issue of first impression in New York State appellate courts, held

“Sewage” Is Pollutant Under Pollution Exclusion, New York Federal Court Rules

Families residing near Love Canal sued Roy’s Plumbing, Inc., alleging that its negligence had led to the discharge of hazardous chemicals onto their property and into their homes. Roy’s sought coverage from its insurer, arguing that its policy’s total pollution exclusion did not apply

Insurer Must Provide “Specific Objective Justification” For EUO Request Upon Provider’s Timely Inquiry

Avalon Radiology P.C. submitted no-fault claims to Ameriprise Insurance Company, and the insurer noticed an examination under oath (“EUO”) for Avalon. Avalon responded with a letter asking for the good faith, objective reason for Ameriprise’s request for an EUO pertaining to Avalon’s

Health Insurer That Paid Insured’s Medical Bills May Not Demand Reimbursement From Insured’s No-Fault Carrier, N.Y. Court Of Appeals Rules

After Luz Herrera was injured in a car accident, her health insurer, Aetna Health Plan, paid bills submitted by her medical providers. Aetna subsequently sought reimbursement from Herrera’s no-fault automobile insurer, Hanover Insurance Company, alleging

N.Y. Court Of Appeals Finds That “All Sums” Allocation And “Vertical” Exhaustion Apply In Asbestos Coverage Case Based On Policies’ Language

Viking Pumps, Inc. faced significant potential liability in connection with asbestos claims. As its primary and umbrella coverage neared exhaustion, litigation arose regarding whether Viking was entitled to coverage under excess policies issued to

State Attorney General’s Letter Was A “Demand” That Precluded Coverage For Subsequent Federal Prosecution

Edward Weaver, the former chief executive officer of Multivend, LLC, sued Axis Surplus Insurance Company for breach of contract, challenging its refusal to provide coverage to him under Multivend’s directors and officers liability insurance policy for his criminal prosecution by

Prisoners’ Class Action Constituted Multiple Occurences, Court Of Appeals Rules

A proposed class action lawsuit was filed against a county in upstate New York after it implemented a policy of strip-searching every prisoner admitted into its jail. The county’s insurer agreed to provide a defense, subject to policy limits and the deductible for personal injury

No Coverage Under Title Insurance Policy Where Insured Settled Claim Without Insurer’s Consent

The insured settled a dispute without obtaining his title insurer’s consent and then sought coverage under the policy. The title insurer denied the claim, and the insured sued. The trial court dismissed the complaint and the insured appealed. The appellate court affirmed,

Please click the link below to view the New York Insurance Coverage Law Update – Compilation 2015.

New York Insurance Coverage Update — Compilation 2015

No Coverage For Crane Damaged By Superstorm Sandy, New York Appellate Court Rules

A 750-foot tall tower crane affixed to a 74-story mixed-use hotel and residential building under construction in Manhattan was dislodged and partially destroyed by Superstorm Sandy. The project’s owner and construction manager sued the insurers that had issued a $700 million builder’s

One Party’s Default Did Not Preclude Others From Litigating Coverage, Court Rules

After allegedly falling on property owned by Ann Einhorn, Avigdor Ehrenfeld sued Einhorn and Beth Jacob Day School. Einhorn’s insurer disclaimed coverage on the ground that Einhorn did not reside at the property and, therefore, it was not an “insured location.” The insurer

Named Insured’s Negligence Was Not Needed To Trigger Additional Insured Coverage, Northern District Rules

An electrician working for a subcontractor on a construction project sued the general contractor for bodily injury, alleging that he had fallen from a ladder.  The general contractor sought to be defended and indemnified as an additional insured under the subcontractor’s

Second Circuit Applies “Unfortunate Event Test” To Find That Incidents Amounted To Three Accidents

A dump box attached to a dump truck struck and damaged an overpass owned by the New York State Thruway Authority. After hitting the overpass, the dump box separated from the truck and landed in the right lane of the highway.

Court Finds Coverage For Owner As Additional Insured And Rejects Insurer’s Late Notice Argument

In October 2012, an employee of Tyco Integrated Security LLC went to a construction site to meet with the construction manager about providing security services for the project, and he allegedly tripped and fell entering a bathroom before the meeting began. 

Law Regarding Certificates Of Insurance Takes Effect In New York

Effective July 28, 2015, Section 502 of the New York Insurance Law provides that a certificate of insurance (i) shall not amend, extend, or alter the coverage provided by the underlying insurance policy, and (ii) shall not confer any rights beyond those expressly provided by

New York’s Top Court Rules On Evidence Medical Provider Must Submit To Obtain Judgment Against No-Fault Insurer

The New York Court of Appeals ruled that a medical provider demonstrated prima facie entitlement to summary judgment in a no-fault insurance action by submitting evidence that payment of no-fault benefits was overdue, and that proof of its

Fourth Department Rules Insurer Must Disclose Certain Pre-Litigation Claim File Documents Prepared By Counsel

After the plaintiff sued an insurer for supplementary underinsured motorist coverage benefits, she sought the insurer’s entire claim file.  The Appellate Division, Fourth Department, ruled that the plaintiff was not entitled to disclosure of documents created after she filed her lawsuit. 

Appellate Court Rules Subcontractor’s Insurer Must Defend And Indemnify General Contractor In Suit By Subcontractor’s Employee

A subcontractor’s employee sued the general contractor, alleging that he was injured when he lost his footing on a stairway while working on a construction project. The general contractor sought coverage as an additional insured under the subcontractor’s insurance

No Coverage For Claims Stemming From Lawyers’ “Hybrid” Law And Business Activities On Client’s Behalf

A client sued a law firm, its partners, and a separate limited liability partnership (the “LLP”) in which she claimed one of the firm’s partners was the “managing member.” The client asserted that the attorneys had induced her to proceed

Claim That Home Was Damaged After Water Main Ruptured And Flooded Basement Was Precluded By Water Exclusion, New York’s Top Court Rules

Homeowners alleged that a subsurface water main abutting their home ruptured, causing water to flood into and severely damage their home’s finished basement. Their homeowners’ insurer disclaimed coverage and the homeowners sued. The

“Contracted Person Exclusion” Bars Coverage For Underlying Personal Injury Action, Federal Court Holds

Omni Build, Inc., the general contractor for a construction project in Brooklyn, New York, hired Zom Corp. as a masonry sub-contractor.  Zom  contracted with Stone Age Equipment for a boom truck to hoist cinder blocks.  A Stone Age employee who allegedly was

Failure of Healthcare Providers’ Assignors To Appear At Scheduled EUOs Dooms Their Claim For No-Fault Benefits

Healthcare providers’ assignors failed to appear at examinations under oath (“EUOs”) scheduled by the no-fault insurer.  The insurer asked the court to declare that the providers were not entitled to receive       no-fault benefits. The court cited to precedent holding

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New York Insurance Coverage Law Update – Compilation 2014

Insurer Must Send Disclaimer To Purported Additional Insureds, New York Court Of Appeals Decides

The owner and managing agent of an apartment building hired a contractor to perform renovations. One of the con-tractor’s employees alleged that he was injured at the site and sued the owner and managing agent, who were insureds under their own

Court Dismisses General Contractor’s “Bad Faith” Claims Against Subcontractor’s Insurer

A general contractor sued a subcontractor’s insurer for additional insured coverage and “breach of the implied covenant of good faith and fair dealing” and breach of its “fiduciary obligations.”  The court dismissed the extra-contractual claims, reasoning that there were no allegations of  “independent breaches of

SUM Benefits Triggered In $300,000/$300,000 Policy Where Other Driver’s Policy’s Limits Were $100,000/$300,000

The insured alleged that he was injured in an accident caused by the driver of another car who was insured by a “split limit” policy providing a bodily injury liability limit of $100,000 per person and $300,000 per accident.  Because those limits

Insured’s Indemnification Obligation Did Not Create Insurance Coverage Where None Otherwise Existed, Court Finds 

Claimant sued Boulder Creek and BIT Investment for injuries she allegedly sustained when she fell outside premises owned by BIT and leased to Boulder Creek.  Boulder Creek asserted a cross-claim against BIT for contractual indemnity under the lease and sought coverage

“Other Insurance” Clause Bars Primary OCPL Insurer’s Contribution Claims Against Contractor’s Other Carriers

Erie Painting & Maintenance, Inc. contracted with the New York State Thruway Authority to perform painting work. An Erie employee alleged that he was injured while working on the project, and he sued the Authority. Arch Insurance Company, which had issued a

Insurer’s Disclaimer Of Bodily Injury Claims Found Timely When Earlier Notice Only Indicated Property Damage

An insurer was notified on June 30, 2008 of alleged property damage to an apartment building caused when the insureds’ employees were applying a floor finish.  A year later, on July 2, 2009, the employees’ counsel notified the insurer that

Second Circuit Finds Policy Issued to Hospital Was Excess To Policy Issued To Nurse

A nurse who worked at the Westchester Medical Center (“WHC”) settled a medical malpractice suit. The court ruled that the policy that WCH had obtained for itself and its staff was excess to the nurse’s professional liability policy because the WCH

Appellate Court Affirms Order Requiring Insurers To Produce Investigation Documents Created Before They Denied Coverage

After a steam turbine power generator at Ravenswood Generating Station in Queens, New York, shook violently and was shut down, the operator notified its insurers of the loss. The insurers hired insurance adjusters and attorneys to assist in the investigation and

Court Finds No Duty To Defend Based Upon “Auto Business” Exclusion After Looking At Judicial Admissions Outside Underlying Complaint

Sam’s Tires & Automotive, Inc., sent Clarence Riffle to deliver tires in a truck owned by its president, Jerry Rosato. Riffle struck a motorcycle operated by Kyle Wagner, who sued. Rosato’s personal auto insurer, Travelers, defended

New York Appellate Division Allows Private Right Of Action Against Health Care Insurer Under Prompt Pay Law

The New York Appellate Division, Second Department, has ruled that Insurance Law § 3224-a, known as the “Prompt Pay Law,” affords claimants a private right of action to recover payment for health care services based on a violation of

New York Court of Appeals Vacates K2, Rejecting “Automatic Indemnity” Where Insurer Breaches Duty to Defend

In K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co., the insurer breached its duty to defend, and a default judgment was entered against its insured. The New York Court of Appeals has vacated its controversial June

Insurer Ordered To Produce Electronic Claims Diary and Counsel’s Letters Concerning Their Investigation On Behalf Of Insurer

Insureds claimed that their boat had been vandalized. Their insurer denied the claim and the insureds sued. The insureds then moved to compel the insurer to produce an unredacted copy of an electronic claims diary prepared by an

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New York Insurance Coverage Law Update – Compilation-2013

Court Rules Reservation of Rights Did Not Satisfy Insurer’s Timely Disclaimer Obligation

In 2006, the insurer reserved rights as to the insured’s claim for coverage for an accident, but the insurer did not disclaim until 2009, one year after its insured was sued and the insurer was provided with a copy of the complaint.  The

New York’s Top Court Answers Two Certified Questions About “Vandalism”

The walls and foundation of the insured’s building allegedly cracked as a result of the acts of an allegedly irresponsible excavator working on neighboring property. In response to two questions certified by the Second Circuit, the New York Court of Appeals ruled that (1) a

Appellate Court Finds No Coverage for Post-Fire Asbestos Remediation Costs

After a fire damaged a building owned by Conley & Tibbitts Properties, LLC, a survey found asbestos, which New York required Conley to remediate. Conley’s insurer denied coverage for the asbestos removal, and Conley sued. The court upheld the disclaimer, reasoning that the policy excluded

New York’s Highest Court Grants Reargument in Controversial K2 Case

The New York Court of Appeals has agreed to hear reargument of the controversial decision in which it held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its

Appellate Court Upholds Jury Decision Finding Health Care Provider’s Fraudulent Incorporation

The Appellate Term, Second Department, upheld a jury verdict finding that a health care provider was ineligible to recover $18 million in no-fault insurance benefits because it was fraudulently incorporated. The appellate court found “ample evidence” that the provider failed to comply with New

N.Y. Court of Appeals Reinstates Bear Stearns’ Complaint for Indemnification of “Disgorgement Payment”

After Bear Stearns settled “late trading” and “market timing” charges with the Securities and Exchange Commission, it sought indemnification from its professional liability and excess insurers for what the SEC had characterized as a “disgorgement payment.” Bear Stearns alleged that a substantial

New York’s Highest Court Holds That Liability Insurer that Breached Duty to Defend Must Indemnify Insured for Judgment, Even if Policy Exclusions Would Have Negated Duty to Indemnify

The New York Court of Appeals has ruled that, when a liability insurer has breached its duty to defend, it “must indemnify its insured for the resulting

Verdict in Negligence Suit Did Not Preclude Application of Intended Bodily Injury Exclusion in Coverage Case

After his car was struck by a vehicle driven by Edmund Schwartz, Walter Dreyer allegedly intentionally drove his vehicle into Schwartz. Schwartz sued Dreyer, asserting negligence and intentional tort causes of action. Only the negligence claim was submitted to

 No Coverage Where No Written Agreement To Name City As Additional Insured

Harleysville issued general liability insurance policies to Bruno Grgas, Inc. and to Coastal Sheet Metal Corp., providing additional insured coverage where the insured and the organization seeking additional insured coverage agreed in writing that the insured add the organization as an additional insured. 

Court, Not Arbitrator, Must Decide Whether Accident Involved an Uninsured Motorist

After Alexander Aizin was involved in a motor vehicle accident, he sought arbitration of his claim against his automobile insurer for uninsured motorist benefits. The insurer moved for a stay of arbitration, arguing that, based upon the police accident report, Aizin was not involved

 Court, Not Arbitrator, Must Decide Whether Accident Involved an Uninsured Motorist

After Alexander Aizin was involved in a motor vehicle accident, he sought arbitration of his claim against his automobile insurer for uninsured motorist benefits. The insurer moved for a stay of arbitration, arguing that, based upon the police accident report, Aizin was not involved

Court Holds Insurer Was Prejudiced By Late Notice That Resulted In Lost Opportunity To Investigate

After the roof of a commercial building in New York City collapsed, the second floor and roof were demolished and removed as ordered by the City.  Approximately 5½ months later, the insurer of the contractor that performed work on the

Please click the link below to view the New York Insurance Coverage Law Update – 2012 Compilation. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install.

New York Insurance Coverage Law Update – 2012 Compilation

Alleged Injury As Woman Exited Bus Did Not Arise Out Of Its “Use Or Operation,” NY Court Of Appeals Rules

The Court of Appeals has held that a woman who allegedly injured her ankle as she exited a New York City bus and stepped into a hole could not recover no-fault benefits because her

“Residence Premises” Raises Question Of Fact Under Circumstances

Insureds purchased a home and began renovating it before moving in. The home was destroyed by fire and the insurer disclaimed coverage because the home was unoccupied and did not quality as a “residence premises.” New York’s highest court, the Court of Appeals, ruled that there

Auto Exclusion Bars Coverage For Injuries Resulting From Employer’s Auto Driven By Employee During Crime Spree

After an employee who used a company car during a crime spree injured a police officer, a jury found that the company was negligent in hiring the employee and entrusting a vehicle to him. The company sought coverage

Insurer’s Failure To Comply With Regulation Establishing Time Limits To Accept Or Reject Property Claims Does Not Preclude It From Relying Upon Exclusion To Disclaim Coverage

After a homeowner sued her insurer for compensation under her homeowner’s insurance policy for fire damage, the insurer raised affirmative defenses to coverage. The New York Court of

Appellate Court Reinstates Claims Against Homeowner’s Insurer

A homeowner sued his insurer for damage from a burst water pipe. The appellate court affirmed the trial court’s decision to dismiss the homeowner’s claims for intentional and negligent infliction of emotional distress, finding that the insurer’s alleged conduct “did not so transcend the bounds

Corning sought coverage for thousands of claims arising from the distribution and/or manufacture of two asbestos-containing products. The court said the insurers failed to make out a prima facie case that each of the thousands of claims constituted a separate occurrence. The court reasoned that claims arising from exposure to an asbestos condition at

Failure To Timely Notify Insurer Dooms Effort To Recover Default Judgment

The insured did not notify its liability insurer when the claimant slipped and fell on the insured’s property in July 1999, or when she was sued in 2001, or when the insured declared bankruptcy and entered into a stipulation allowing the claimant to

Insured’s Failure To Notify Insurer Of Arbitration Settlement Dooms SUM Claim

After the insured was involved in a car accident, he settled an arbitration with the alleged tortfeasor and then sought supplementary uninsured/underinsured coverage under his auto policy. The insurer denied the claim, asserting that it had not received written notice of the insured’s

Statute of Limitations Begins to Run When Insurer Could Seek Payment of Adjusted Premiums, Not When It Later Issued Invoices

Hahn Automotive Warehouse, Inc. obtained insurance policies that required regular adjustments of premiums based on actual claims experience. An insurer discovered in 2005 that it had not billed Hahn for years of adjusted premiums

No Coverage For Landlord As Additional Insured, Court of Appeals Decides

A landlord was an additional insured under a commercial general liability policy issued to a tenant “only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to [the tenant].” The New York Court

Insurer Precluded From Delaying Disclaimer On Valid Ground While Investigating Other Grounds

An insurer that had sufficient information to disclaim coverage on the ground of late notice issued a disclaimer on that ground nearly four months later. The Appellate Division, First Department, ruled that the disclaimer was ineffective pursuant to New York Insurance Law

Employee May Receive Uninsured Motorist Benefits From Self-Insured Employer Despite Workers’ Compensation Law

An employee of a self-insured employer was injured in an accident while driving the employer’s car. The person driving the other car did not have liability insurance, and the employee sought uninsured motorist benefits from his employer. The employer contended that

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New York Insurance Coverage Law Update – 2011 Summary

Insurer Prejudiced From Late Notice

An insurer was given notice five years after an auto accident involving its insured, two years after an action was filed against its insured, after destruction of the truck involved in the accident, and after summary judgment had been granted on the issue of liability (not damages) against its

Insurer Estopped From Denying Excess Coverage

The general contractor and owner of a construction site sought coverage under an excess insurance policy issued to their subcontractor with respect to an underlying personal injury action. The excess insurer acknowledged coverage and participated in the defense. After partial summary judgment was awarded in favor of

Court Rules Acts Of Alleged Sexual Abuse Over Years Are Multiple Occurrences Implicating Multiple SIRs

A mother of a minor girl sued the Roman Catholic Diocese of Brooklyn, alleging that the Reverend James Smith had sexually abused the girl over a number of years. The Diocese then sued its insurer for reimbursement of defense

Assault And Battery Exclusion Bars Coverage Where Security Guard Allegedly Threw Glass At Plaintiff’s Face

After a fight broke out at the “Beauty Bar” in Manhattan, a woman sued Jinx-Proof Inc., contending that she had been injured when a security guard threw a glass at her face. Jinx-Proof’s commercial general liability insurer asserted

No Coverage Where Building Insured As Two-Family Dwelling Had Three Apartments

An insurance company that issued an insurance policy to owners of a building asserted that they were not entitled to defense or indemnity for a personal injury action because the owners represented that the building was a two-family dwelling but the

Exclusion Did Not Bar Coverage For Wrongful Death Claim By Noninsured Father Following Daughter’s Death

A girl drowned at her grandparents’ home, where she lived. The girl’s father, who did not live with the grandparents, obtained a wrongful death judgment and filed a direct action against the grandparents’ homeowner’s insurer. The Court of

Insured May Not Recover Attorneys’ Fees From Insurer In Property Damage Case

An insurer sued its insured for a declaration of no coverage, and the court ruled that the insurer was obligated to cover damage to the insured’s building. The court also awarded the insured $41,000 in attorneys’ fees. The insurer appealed, and

Assignor’s Failure To Appear At IME Dooms Provider’s Claim For No-Fault Benefits

A health care provider that had been assigned first-party no-fault benefits sued the insurance company for payment. The insurer moved for summary judgment, asserting that the provider’s assignor had failed to appear for an independent medical examination (“IME”). The court explained

Exclusion Did Not Bar Coverage For Third Party’s Alleged Injuries In ATV Accident On Insured’s Property

After the operator of an all terrain vehicle allegedly sustained personal injuries on property owned by Grande Stone Quarry, LLC, the property owner’s general liability insurer disclaimed coverage to the property owner based upon an exclusion for

Court of Appeals Annualizes $30 Million Limit of Three-Year Excess Policy But Refuses To Find Additional Year Of Policy Limit Because Of Two-Month Extension

Union Carbide Corporation contended that the six insurance companies that provided it with $30 million of “fifth excess layer” coverage owed it $90 million – $30 million for each

Court Rejects Claim That Non-Original Equipment Manufacturer Parts Are “Universally Inferior”

Owners of vehicles damaged in auto accidents contended in a class action lawsuit against their insurer that the estimates by their insurer’s claims adjusters were too low because the adjusters used prices for non-original equipment manufacturer (“OEM”) crash parts rather than for OEM

Losses From Madoff’s Ponzi Scheme Not Covered Under Homeowners Policy

After allegedly losing millions of dollars in Bernard Madoff’s Ponzi scheme, Sharon Lissauer brought suit against Fireman’s Fund Insurance Company to recover that money under her homeowners policy. In its decision dismissing the complaint, the U.S. District Court for the Southern District of

Please click the link below to view the New York Insurance Coverage Law Update — 2010 Summary. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install.

Health Law Bulletin – April/May 2010

No Coverage For Mold Case Where Alleged Injury Outside Policy Period

The underlying plaintiff’s allegation of exposure to mold during the policy period did not trigger any duty to defend or to indemnify where the injury allegedly occurred after the policy period. As the court reasoned, New York follows the “injury-in-fact” test that “rests

Insurer Must Defend Restaurant Owner In Suit Following Fight At Party

A restaurant employee fatally stabbed a guest and injured another person at a party hosted at the restaurant by the owner. The Appellate Division, First Department, agreed with one insurer that it had no duty to defend or to indemnify the restaurant owner

Insured’s Assignees May Not Bring Bad Faith Action Against Insurer Where Insured Could Not Assert That Claim

Personal injury plaintiffs obtained a judgment against a restaurant, which assigned them its rights against its insurer. The plaintiffs, as the restaurant’s assignees, then brought suit against the insurer, arguing that it had refused in bad faith

Court Upholds One-Year Time Limit For Suit Against Homeowners Insurer

A homeowner brought suit on March 26, 2010 to recover benefits under a homeowners insurance policy with respect to an alleged theft from her home on January 5, 2007. The insurer maintained that the action was time barred because it had not been brought

Parked Truck Was Being “Used” To Transport Sheet Metal That Allegedly Cut Insured

An employee returning to work after taking a break in her employer’s parking lot allegedly was injured when she walked into a piece of sheet metal extending beyond the tailgate of a co-worker’s parked truck, which the co-worker had planned

No Coverage Where Injured Party Was Employee Of Another Insured

In this declaratory judgment action, the owner and tenant of an accident site sought coverage for a personal injury suit brought by an employee of another insured. The owner, tenant and claimant’s employer were all insureds under the policy. The Appellate Division, First Department,

Top New York Court Finds Construction Manager Is An Additional Insured Where Named Insured’s Employee Claimed Injury

Regal Construction Corp. contracted with URS Corp., the construction manager, to work on a project at New York City’s Rikers Island. The commercial general liability (“CGL”) insurance policy obtained by Regal covered URS as an additional insured

Second Circuit Opines That Limitations Period Begins To Run When Insureds’ Claim Against Homeowner’s Insurer Accrues

The insureds filed a claim with their homeowner’s insurer after their house began to collapse. The insurer denied coverage, and the insureds sued. The insurer maintained that the limitations period had expired, relying upon a policy provision that

Employee Driving His Own Leased Car While Working Is Not An Insured Under Employer’s Auto Insurance Policy

While driving his own leased car to the bank to make a deposit for his employer, Regional Integrated Logistics, Michael Hale was involved in an accident. The insurer that had issued a commercial automobile insurance policy to

Volunteer Firefighter Allegedly Injured Outside Truck While Directing Traffic At Accident Site Not Entitled to SUM Coverage

A volunteer firefighter sought supplementary uninsured motorist (“SUM”) coverage for injuries he allegedly suffered when he was directing traffic away from the scene of a motor vehicle accident. The court first found that the firefighter was

Second Department Permits § 349 Claim To Proceed Against Homeowners’ Insurer

The insureds claimed that a storm caused a hillside on their property in the Village of Roslyn to collapse. Thereafter, the insureds filed suit and asserted a claim under General Business Law § 349 against the insurer that had issued a deluxe homeowners’