Ment Bros. Iron Works Co., Inc v. Interstate Fire and Casualty Co., No. 11-2596 (2d Cir. 2012)

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This declaratory judgment action involved a dispute over liability insurance coverage for property damage alleged to have been caused by the policyholder during construction of a residential building. The policyholder filed suit against Interstate seeking a declaration that its insurer was obligated to defend and indemnify. The district court ruled that the property was a "residential property" construction but not an "apartment" at the time the damage occurred and thus, the policyholder had no coverage. Because the court concluded that the property was an apartment building as defined by the insurance policy when the damage occurred, the court held that the policyholder was covered by the policy and therefore reversed the judgment of the district court.

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11-2596-cv Ment Bros. Iron Works Co. v. Interstate Fire & Casualty Co. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: September 5, 2012 Decided: December 11, 2012) Docket No. 11-2596 - - - - - - - - - - - - - - - - - - - -x MENT BROS. IRON WORKS CO., INC., Plaintiff-Appellant, - v.INTERSTATE FIRE & CASUALTY CO., Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI and CARNEY, Circuit Judges. Ment Bros. Iron Works Co., Inc. appeals from a judgment 30 of the United States District Court for the Southern 31 District of New York (Hellerstein, J.) granting summary 32 judgment in favor of Interstate Fire & Casualty Co. in an 33 insurance dispute. 34 35 36 37 38 Reversed. NEAL M. EISMAN, Goetz Fitzpatrick LLP, New York, NY, for Appellant Ment Bros. Iron Works Co., Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 STUART M. BODOFF, Rivkin Radler LLP, Uniondale, NY (Evan H. Krinick, Gary D. Centola, Jay Kenigsberg, Erik Lindemann, on the brief), for Appellee Interstate Fire & Casualty Co. RICHARD VOLACK, Peckar & Abramson, P.C., New York, NY (Cesar F.F. Pereira, on the brief), for Amicus Curiae Allied Building Metal Industries, Inc., in support of Appellant. DENNIS JACOBS, Chief Judge: This declaratory judgment action disputes liability 18 insurance coverage for property damage alleged to have been 19 caused by the policyholder, a welding subcontractor, during 20 construction of a residential building at 40 Mercer Street 21 in New York City. 22 the developer as a residential condominium, though no units 23 had been sold at the time the damage occurred. 24 commercial liability coverage (with an aggregate limit of $2 25 million) excludes property damage arising out of the 26 construction of residential properties, except 27 apartments. 28 include condominiums. 29 residential real property in a multi-unit residential Forty Mercer was planned and marketed by The general Residential properties is defined to An apartment is defined as a unit of 30 2 1 building or project where all units are owned by and titled 2 to a single person or entity. 3 The policyholder, Ment Bros. Iron Works Co., Inc. 4 ( Ment ) filed suit against Interstate Fire & Casualty Co. 5 ( Interstate ) seeking a declaration that its insurer is 6 obligated to defend and indemnify. 7 judgment of the United States District Court for the 8 Southern District of New York (Hellerstein, J.) granting 9 summary judgment in favor of Interstate. Ment appeals from the The district court 10 ruled that 40 Mercer was a residential property 11 construction but not an apartment at the time the damage 12 occurred--meaning that Ment had no coverage. 13 conclude that 40 Mercer was an apartment building as defined 14 in the insurance policy when the damage occurred, Ment was 15 covered by the policy. Because we We therefore reverse. 16 17 18 I WXIV/Broadway Grand Realty, LLC ( WXIV/Broadway ), a 19 building owner and developer, began construction at 40 20 Mercer Street in 2005, using Pavarini McGovern, LLC 21 ( Pavarini ) as general contractor. 22 the welding to Ment. Pavarini subcontracted Ment completed its work between April 3 1 and July 2006. 2 owner of the building and project at 40 Mercer. 3 At the time, WXIV/Broadway was the sole fee Thereafter, Pavarini discovered damage to the penthouse 4 windows, allegedly caused by welding sparks. Pavarini sued 5 Ment in New York state court. 6 Ment Bros. Ironworks, Index No. 107637/09 (N.Y. Sup. Ct. 7 2011) (York, J.). 8 suit and indemnify it. 9 defend, but soon reserved its rights on the ground that the See Pavarini McGovern, LLC v. Ment called on Interstate to defend the Interstate assigned counsel to 10 damage had occurred during the construction of a 11 condominium, citing the residential construction exclusion. 12 Interstate agreed to furnish a defense until Ment s counsel 13 could file a motion for summary judgment. 14 counsel advised Interstate that such a motion was not yet 15 feasible, Interstate gave thirty days notice that it would 16 relinquish the defense, so that Ment could make its own 17 arrangements. When Ment s 18 Ment filed a two-count complaint in the Southern 19 District of New York seeking a declaration that Interstate 20 had duties of defense and indemnity on the underlying 21 Pavarini claim. 22 Fire & Cas. Co., No. 10 Civ. 3043 (Dkt. No. 1) (S.D.N.Y. See Ment Bros. Iron Works Co. v. Interstate 4 1 Apr. 9, 2010) (Hellerstein, J.). Cross-motions for summary 2 judgment were filed on January 18, 2011. 3 on June 13, 2011, the district court ruled from the bench. 4 A summary order explained that the residential construction 5 exclusion applied [f]or the reasons provided on the 6 record, and therefore grant[ed] summary judgment to 7 Interstate dismissing the Complaint. 8 (Dkt. No. 46) (S.D.N.Y. June 13, 2011). 9 notice of appeal. At oral argument Summ. Order, at 1 Ment timely filed a 10 11 12 II We review an order granting summary judgment de novo, 13 drawing all factual inferences in favor of the non-moving 14 party. 15 Cir. 2011). 16 of contracts, including insurance agreements. 17 Fund Ins. Co. v. TD Banknorth Ins. Agency Inc., 644 F.3d 18 166, 169 (2d Cir. 2011). Costello v. City of Burlington, 632 F.3d 41, 45 (2d Likewise, we review de novo the interpretation Fireman s 19 20 21 22 III The provisions at issue are contained in Endorsement ICB-6002 (12/04), entitled RESIDENTIAL CONSTRUCTION 5 1 EXCLUSION WITH APARTMENT EXCEPTION. 2 the margin.1 3 exception (so labeled) is set out as follows, decisive terms 4 emphasized: 5 The fuller text is in The critical wording of the exclusion and the This insurance does not apply to . . . property 1 This insurance does not apply to: Bodily injury , property damage or personal and advertising injury arising out of the construction of residential properties , except apartments . In the event any apartment to which coverage under this policy applies is converted to a condominium, townhome or multi-family dwelling , then coverage under this policy is excluded for any claims for bodily injury , property damage , personal and advertising injury , arising out of, related to, caused by, or associated with, in whole or part, the construction of said apartments which occur after the conversion of the apartment into a condominium, townhome or multifamily dwelling . As used in this endorsement, the following terms have the following meanings: 1. Residential properties include but are not limited to single-family dwellings, townhomes, condominiums or multifamily dwellings . 2. Apartment means a unit of residential real property in a multi-unit residential building or project where all units are owned by and titled to a single person or entity. 3. Condominium, townhome or multi-family dwelling means a unit of residential real property in a multiunit residential building or project where each unit is separately owned and titled. J.A. 87. 6 1 2 3 4 5 damage . . . arising out of the construction of residential properties [the exclusion], except apartments [the exception]. J.A. 87 (emphasis added). 6 followed by qualifying language, which applies to 7 8 9 10 11 12 13 14 15 16 17 18 19 20 apartments that are converted to condominiums : The exclusion and exception are In the event any apartment to which coverage under this policy applies is converted to a condominium, . . . , then coverage under this policy is excluded for any claims for . . . property damage arising out of, related to, caused by, or associated with, in whole or part, the construction of said apartments which occur after the conversion of the apartment into a condominium, townhome or multi-family dwelling [qualifying language]. Id. (emphases added). 21 22 IV 23 Under New York law, which governs this dispute, an 24 insurer bears the burden of proving that an exclusion 25 applies. 26 Ins. Co., 98 N.Y.2d 208, 218 (2002) ( Generally, it is for 27 the insured to establish coverage and for the insurer to 28 prove that an exclusion in the policy applies to defeat 29 coverage. ); 2 Allan D. Windt, Ins. Claims & Disputes § 9:1 30 (5th ed. 2010). 31 exclusion applies, however, New York law has evolved to See, e.g., Consol. Edison Co. of N.Y. v. Allstate Once the insurer establishes that an 7 1 place the burden of proof on the insured to establish the 2 applicability of an exception to the exclusion. 3 This Court has previously interpreted New York law to 4 be that the insurer retains the burden of also showing that 5 an exception to the exclusion is inapplicable. 6 v. Blank, 27 F.3d 783, 789 (2d Cir. 1994) (citing Colonial 7 Tanning Corp. v. Home Indem. Co., 780 F. Supp. 906, 919 8 (N.D.N.Y. 1991)); see also Town of Union v. Travelers Indem. 9 Co., 906 F. Supp. 782, 787 (N.D.N.Y. 1995) (applying Blank). 10 See New York But New York law on this point has changed since 1994. 11 In Northville Industries Corp. v. National Union Fire 12 Insurance Co. of Pittsburgh, 89 N.Y.2d 621 (1997), the New 13 York Court of Appeals held that once an insurer establishes 14 that an exclusion applies, the burden shifts to the insured 15 to demonstrate that an exception to the exclusion applies. 16 Id. at 634; see also Hritz v. Saco, 795 N.Y.S.2d 236, 237 17 (1st Dep t 2005); Barry R. Ostrager & Thomas R. Newman, 18 Handbook on Insurance Coverage Disputes § 10.02[a][1] (14th 19 ed. 2008) (collecting cases applying burden-shifting rule). 20 Several district courts in this Circuit have recognized the 21 shift in New York law. 22 Grp. (USA), --- F. Supp. 2d ---, 2012 WL 3100636, at *9 & See, e.g., RSUI Indem. Co. v. RCG 8 1 n.8 (S.D.N.Y. July 31, 2012); Mahl Bros. Oil Co. v. St. Paul 2 Fire & Marine Ins. Co., 307 F. Supp. 2d 474, 494 (W.D.N.Y. 3 2004). 4 this issue of New York law since Blank, we now acknowledge 5 that after an insurer establishes that a policy exclusion 6 applies, the burden shifts to the policyholder to prove that 7 an exception to that exclusion applies. 8 9 Because this Court has not had occasion to consider Thus if Interstate can show that the residential construction exclusion applied to Ment s work on 40 Mercer, 10 then Ment must show that the apartment exception to the 11 exclusion preserved Ment s coverage. 12 13 14 V The exclusion forecloses coverage for property 15 damage . . . arising out of the construction of 16 residential properties. 17 properties are defined to include but are not limited to 18 single-family dwellings, townhomes, condominiums or 19 multifamily dwellings. J.A. 87. Residential Id. (emphasis added). 20 The New York approach to the interpretation of 21 contracts of insurance is to give effect to the intent of 22 the parties as expressed in the clear language of the 9 1 contract. 2 277 F.3d 232, 236 (2d Cir. 2002) (internal quotation marks 3 omitted). 4 their plain and ordinary meaning. 5 Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 119 6 (2d Cir. 2010) (quoting Essex Ins. Co. v. Laruccia Constr., 7 Inc., 898 N.Y.S.2d 558, 559 (2d Dep t 2010)). 8 9 Mount Vernon Fire Ins. Co. v. Belize NY, Inc., Terms in an insurance contract must be given 10 Ellicott Square Forty Mercer qualifies as a residential property under the ordinary meaning of the term. Moreover, the term 10 is defined in the contract to include properties such as 11 single-family homes, townhomes, condominiums, or similar 12 properties. 13 the 40 Mercer building was a new construction of a 14 residential property at the time the damage occurred. 15 In any event, the parties do not dispute that The harder question is whether Ment s coverage is 16 preserved nevertheless by the exception to the exclusion. 17 Although coverage is excluded for property 18 damage . . . arising out of the construction of 19 residential properties, there is the exception for 20 apartments, which are defined as a unit of residential 21 real property in a multi-unit residential building or 22 project where all units are owned by and titled to a single 10 1 person or entity. 2 apartment is in that respect the opposite of a 3 condominium, which is defined as a unit of residential 4 real property in a multi-unit residential building or 5 project where each unit is separately owned and titled. 6 Id. (emphasis added). 7 J.A. 87 (emphasis added). An The record is clear that, in 2006, 40 Mercer was an 8 apartment building rather than a condominium. The sale deed 9 in the record shows that in 2001, the property was sold by 10 multiple owners to WXIV/Broadway alone. The documentation 11 of the mortgage obtained by WXIV/Broadway in October 2005 12 clearly shows that WXIV/Broadway was the owner of the entire 13 40 Mercer property. 14 unit of the planned condominium had been transferred when 15 Ment finished performing its welding subcontract in the 16 summer of 2006. There is no claim or evidence that any 17 Since 40 Mercer met the policy s definition of 18 apartment at the relevant time, we therefore hold that 19 Ment has sustained its burden to show that the apartment 20 exception to the residential construction exclusion applies 21 and that it is entitled to coverage on this loss. 22 11 1 2 VI Interstate seeks to elide the fact of unitary ownership 3 of the building. 4 offering literature filed with the New York Attorney 5 General, which shows that 40 Mercer was intended from the 6 outset to be sold as condominiums, and cites New York cases 7 suggesting that the ultimate intended use of a building is 8 determinative. 9 Contractors, Inc., 917 N.Y.S.2d 168 (1st Dep t 2011).2 10 Instead, Interstate points to condominium See, e.g., Admiral Ins. Co. v. Joy We are unpersuaded. The contract wording governs. 11 Whatever the developer s design or marketing plan, the 12 wording of the exception to the exclusion, and the related 13 definitions, indicate that Ment was covered. 14 qualifying language in the policy supports the view that an 15 apartment is not a condominium until after conversion: 16 17 18 19 20 Moreover, the In the event any apartment to which coverage under this policy applies is converted to a condominium, . . . , then coverage under this policy is excluded for any claims for . . . property damage arising out of . . . the 2 After briefing was completed in this appeal, the New York Court of Appeals affirmed but modified the opinion of the First Department in Admiral Insurance Co. See Admiral Ins. Co. v. Joy Contractors, Inc., 19 N.Y.3d 448 (2012). The Court of Appeals explicitly observed that a developer s intent does not control whether a policy containing a residential construction exclusion affords coverage. Id. at 458. 12 1 2 3 construction of said apartments which occur after the conversion of the apartment into a condominium, townhome or multi-family dwelling. 4 J.A. 87 (emphases added). Interstate does not dispute that 5 at the time the damage occurred, the 40 Mercer project was 6 owned by and titled to a single owner. 7 Although the language of the policy governs and settles 8 the dispute, Interstate s argument regarding ultimate intent 9 is additionally unpersuasive because under New York law, a 10 building does not become a condominium until a condominium 11 declaration is filed. 12 condominium and thus is subject to the jurisdiction of the 13 Condominium Act by the filing of a declaration. 14 v. Yardarm Beach Homeowners Ass n, 523 N.Y.S.2d 523, 527 15 (2d Dep t 1987) (internal citations omitted); see also id. 16 at 526-27 ( In New York the creation and administration of 17 condominiums is governed by the provisions of [the 18 Condominium Act]. ); 19A N.Y. Jur. 2d Condos. § 80 (2012). 19 Without a valid and existing condominium declaration, a 20 condominium s existence is not recognized at law. 21 798 Realty Corp. v. 152 W. Condo., 830 N.Y.S.2d 79, 80 (1st 22 Dep t 2007). A parcel of real property becomes a 23 13 Schoninger Local 1 WXIV/Broadway did not file a condominium declaration 2 until February 9, 2007, after Ment had completed its work on 3 40 Mercer. 4 project may have intended and anticipated that 40 Mercer 5 would become a condominium, but it was not a condominium 6 under New York law until the declaration was filed in 7 February 2007. WXIV/Broadway and everyone involved in the 8 Even if the apartment exception to the residential 9 construction exclusion were ambiguous, any ambiguity must be 10 construed against Interstate as drafter of standard contract 11 wording. 12 N.Y.2d 377, 383 (2003) ( It follows that policy exclusions 13 are given a strict and narrow construction, with any 14 ambiguity resolved against the insurer. ). 15 principle applies regardless of whether, as to a particular 16 clause, the burden of proof falls on the insurer or the 17 policyholder. 18 Excelsior Ins. Co., 877 N.Y.S.2d 359, 361-62 (2d Dep t 2009) 19 (construing an ambiguous term in an exception to an 20 exclusionary clause against the insurer). 21 22 See Belt Painting Corp. v. TIG Ins. Co., 100 The same See Nick s Brick Oven Pizza, Inc. v. To the extent it matters, there would seem to be good reason why an insurer would draft wording to avoid coverage 14 1 for residential units that are held by multiple owners. 2 Although Interstate did not explain the purpose of the 3 apartment exception to the residential construction 4 exclusion, Ment suggested that its purpose is to provide 5 coverage for contractors facing liability from a single 6 building owner but not for contractors facing numerous 7 potential suits from various individual residential owners.3 8 Because we hold that the apartment exception applied to 9 Ment s work on the 40 Mercer building, we need not consider 10 Ment s remaining arguments on appeal regarding equitable and 11 promissory estoppel. 12 13 For the foregoing reasons, we reverse the judgment of the district court. 3 That explanation is consistent with one industry publication, which attributes the rise of residential exclusions in commercial general liability policies to the fact that construction defect litigation, spearheaded by the residential sector has increased dramatically over the last few years. Patrick J. Wielinski & Marc A. Young, New Challenges to Insurance Coverage for Defective Construction, 56 Fed n Def. & Corp. Couns. Q. 175, 178-81 (2006) (describing the cost of defense of massive subdivision-wide and homeowners association condominium claims, as well as difficulties associated with insurance coverage litigation among multiple parties and their insurers ). 15

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