Granite Ave. Utils. Corp. v Markel Am. Ins. Co.
Annotate this CaseDecided on August 2, 2007
Supreme Court, Richmond County
Granite Avenue Utilities Corp., Plaintiff(s),
against
Markel American Insurance Company, Distinguished Programs Insurance Brokerage, LLC and Distinguished Star Contractors RPG Inc., Defendant(s).
100087/07
Judith N. McMahon, J.
The plaintiff Granite Avenue Utility Corporation [Granite] commenced the instant action to recover damages and attorneys' fees, costs and disbursements against defendants for the alleged failure to procure insurance coverage and negligence.
On May 4, 2001, Donald Vigilante and Stephanie Jenkins suffered serious physical injuries during a motorcycle accident on Richmond Road in Staten Island, New York. As a result, Mr. Vigilante and Ms. Jenkins commenced a lawsuit to recover damages against Verizon New York [Verizon], et. al., who was performing work on or near the roadway at the time of the accident. Verizon then impleaded plaintiff Granite, as subcontractor, alleging contractual indemnification.On or about July 2006, the personal injury action was settled during trial. Granite's general insurer paid its maximum policy, or $1 million, in claims while Verizon contributed $875,000. However, Verizon's indemnification claims were left unsettled as against Granite, who had already exhausted its general insurance policy. Granite then sought to invoke its umbrella policy purchased through defendants Distinguished Programs Insurance Brokerage LLC and Distinguished Star Contractors RPG, LLC [Distinguished] and issued by defendant Markel American Insurance Company [Markel].
On January 6, 2003, Distinguished notified Markel of the underlying Vigilante/Jenkins claim. On November 30, 2005, two years after initial notification, Markel disclaimed coverage of the Granite claim. On January 9, 2007, Granite commenced this action seeking payment under [*2]the umbrella policy of $875,000 for the underlying Vigilante/Jenkins claim, attorneys' fees, costs and disbursements. Issue was joined by all defendants by April 24, 2007. Granite now moves for summary judgment against all defendants.
It is well settled that where the terms and conditions of an insurance policy are "clear and unambiguous" the construction of that policy is a question of law for the court (see Commercial Union Ins. Co. v. Liberty Mutual Ins. Co., 36 AD3d 645, 645 [2d Dept. 2007]). The terms and conditions in the instant case are clear. Here, the plaintiff has made a prima facie showing of entitlement to summary judgment by establishing that defendant Markel issued an umbrella policy to Granite for the time period including the underlying accident. Granite has provided the certificate of coverage evidencing itself as a named insured on defendant Distinguished's umbrella policy, as well as cancelled checks evidencing the payment of the policy's premium. Moreover, defendant Markel, in a fax dated February 18, 2004, blatantly recognized itself as the umbrella carrier for defendant Distinguished and further acknowledged that Granite was a named insured. In opposition, the defendant Markel has failed to demonstrate the existence of a triable issue of fact as to whether plaintiff was covered under a umbrella policy issued by Markel (see generally Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
As a result, Markel's disclaimer of coverage given over two years after the aforementioned accident, and one year after initial notification of the claim, is unreasonable as a matter of law (Insurance Law § 3420[d]; see First Financial Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64, 70 [2003][finding a delay of 48 days unreasonable]; 79th Realty Co. v. Wausau Ins. Cos., 7 AD3d 507, 508 [2d Dept. 2004][holding a delay of nine month unreasonable]; State v. Gen. Star Indemnity Corp., 299 AD2d 537, 539 [2d Dept. 2002][finding a 13 month delay unreasonable as a matter of law).
Plaintiff's request in the complaint for attorneys fees is not substantiated by any contract or statute indicating that plaintiff shall receive attorneys fees from defendants (see Hooper Assocs. v. AGS Computers Inc., 74 NY2d 487, 491 [1989]; RAD Ventures Corp. v. Artukmac, 31 AD3d 412, 415 [2d Dept 2006]; Panish v. Panish, 24 AD3d 642, 644 [2d Dept 2005]).
Accordingly, it is
ORDERED that plaintiff's motion is granted to the following extent; plaintiff's motion for summary judgment against defendant Markel American Insurance Company is granted, and it is further
ORDERED that plaintiff's motion for summary judgment against defendant Distinguished Programs Insurance Brokerage LLC and Distinguished Star Contractors RPG, Inc., is denied, and it is further
ORDERED that all other relief requested by plaintiff is hereby denied, and it is further
ORDERED that all parties appear for a conference on September 12, 2007 at 9:30 a.m.
THIS IS THE DECISION AND ORDER OF THE COURT.
E N T E R,
Dated: August 2, 2007
Hon. Judith N. McMahon
Justice of the Supreme Court
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