Southwest Mar. & Gen. Ins. Co. v Preferred Contrs. Ins. Co.

Southwest Mar. & Gen. Ins. Co. v Preferred Contrs. Ins. Co. 2016 NY Slip Op 06884 Decided on October 20, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2016
Sweeny, J.P., Renwick, Manzanet-Daniels, Webber, JJ.
153861/14 -1987B 1987A 1987

[*1] Southwest Marine and General Insurance Company, et al., Plaintiffs-Respondents-Appellants,

v

Preferred Contractors Insurance Company, Defendant-Appellant-Respondent, Gilmar Design Corporation, Defendant.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Eric D. Suben of counsel), for appellant-respondent.

Carroll McNulty Kull LLC, New York (Ann M. Odelson of counsel), for respondents-appellants.

Orders, Supreme Court, New York County (Robert R. Reed, J.),

entered April 14 and May 20, 2015, which denied defendant Preferred Contractors Insurance Company's (PCIC) motion to dismiss the complaint as against it, and denied plaintiffs' motion for summary judgment declaring that PCIC is obligated to defend and indemnify them in the underlying personal injury action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 23, 2015, to the extent that, upon reargument, it adhered to the original determination, unanimously dismissed, without costs, as academic.

PCIC, a Montana risk retention group, failed to show that the documentary evidence submitted in support of its motion to dismiss "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff[s'] claim" (West 64th St., LLC v Axis U.S. Ins., 63 AD3d 471, 471-472 [1st Dept 2009] [internal quotation marks omitted]). While the additional insured endorsements at issue do not reference plaintiffs, plaintiffs are identified on the certificates of insurance, which is relevant to whether plaintiffs' exclusion from the endorsements was perhaps an inadvertent error (Rosalie Estates v Colonia Ins. Co., 227 AD2d 335, 337 [1st Dept 1996]).

Contrary to plaintiffs' contention that the policy must be construed against PCIC, as the drafter, because ambiguity is created by the appearance of the phrase "Blanket Accident Insurance" within the same form that requires additional insureds to be scheduled (see Ames Constr., Inc. v Intermountain Indus., Inc., 712 F Supp 2d 1160, 1166 [D Montana 2010], affd 445 Fed Appx 971 [9th Cir 2011]; Baker v Nationwide Mut. Ins. Co., 158 AD2d 794, 796-797 [3d Dept 1990]), "the parties may submit extrinsic evidence as an aid in construction" (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; see also New York

State Ins. Fund v Everest Natl. Ins. Co., 125 AD3d 536 [1st Dept 2015]; Baker v 16 Sutton Place Apt. Corp., 72 AD3d 500, 501 [1st Dept 2010]; Corporate Air v Edwards Jet Ctr., 345 Mont 335, 349, 190 P3d 1111, 1121 [Mont 2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2016

CLERK