Sozzi v Moishe's Moving Sys., Inc.
Annotate this CaseDecided on August 7, 2007
Supreme Court, New York County
Vittorio Sozzi, Plaintiff,
against
Moishe's Moving Systems, Inc., Omega Shipping Co., Inc., Pac Global Insurance Brokerage, Inc., and Fortis Corporate Insurance N.V., Defendants.
111822/06
For Plaintiff Vittorio Sozzi:
Law Offices of Albert Rizzo
By: Albert Rizzo, Esq.
60 East 42nd Street
New York, New York 10165
(212) 679-5799
For Defendants PAC Global Insurance Brokerage, Inc. and
Fortis Corporate Insurance N.V.:
DeOrchis, Wiener & Partners, LLP
By: Mika T. Hallakorpi, Esq.
61 Broadway, 26th Floor
New York, New York 10006
(212) 344-4700
For Defendant Omega Shipping Co, Inc.:
Law Offices of Bennett I. Weiner
25 West 43rd Street, Suite 920
New York, New York 10036
(212)730-5495
For Defendant Moishe's Moving Systems, Inc.:
Law Offices of Fran Mulnick Parker
By: Barbara Album, Esq.
450 West 15th Street, Penthouse
New York, New York 10011
(212) 647-7392
Michael D. Stallman, J.
Defendants PAC Global Insurance Brokerage, Inc. (Pac Global) and Fortis Corporate Insurance N.V. (Fortis) move by order to show cause to stay the action and compel arbitration of the claim asserted against Fortis, pursuant to CPLR Article 75 and section 2201, and to dismiss the claim asserted against Pac Global.[FN1]
Background
In June of 2004, plaintiff Vittorio Sozzi contracted with defendants Moishe's Moving Systems (Moishe's) and Omega Shipping Co, Inc. (Omega), to pack, move, ship and transport Sozzi's personal items from his residence in New York to Italy (Complaint, ¶ 6). Sozzi insured the value of the items against damage and loss (Id., ¶ 7). Upon delivery of the shipped items, Sozzi discovered that several items were damaged. Sozzi filed a claim for damages for $59,500 under the insurance policy obtained on his behalf (see Affidavit of Mika T. Hallakorpi, Ex B), and received an initial damage loss adjustment of $7,275.19 (Affirmation of Albert Rizzo, Esq., ¶ 12).
Sozzi disputed the claim adjustment, and thereafter commenced this action seeking money damages against Moishe's and Omega. In the complaint, Sozzi asserted causes of action for negligence, and for breach of contract arising from the shipping agreement.
Subsequently, Sozzi filed an amended complaint adding Pac Global as a defendant, asserting a claim against it for breach of insurance policy. Pac Global advised Sozzi that Fortis was the insurance carrier, and Pac Global was merely the insurance broker. Sozzi then filed a second amended complaint, naming Fortis as an additional defendant, and asserting a claim against it for breach of contract.
Pac Global and Fortis filed an answer to Sozzi's second amended complaint. In the sixth affirmative defense, Pac Global and Fortis reserved the right to arbitrate the dispute, relying on an [*2]arbitration provision contained in the insurance policy. Fortis contends that the provision establishes that Sozzi agreed to submit any disputes arising under the insurance policy to arbitration.
In opposition, Sozzi argues that he never consented, expressly or impliedly, to arbitrate his claims. Sozzi maintains that Omega procured the insurance coverage from Fortis on his behalf, and that he never signed the insurance policy containing the arbitration clause, and neither did he see it until after his items were delivered (Affirmation of Albert Rizzo, Esq., ¶ 10). Consequently, because he was unaware of the terms of the insurance policy until after the transaction with Moishe's was completed, Sozzi argues that he could not have assented to arbitration, and is not bound by the arbitration clause.
Alternately, Sozzi maintains that the insurance policy does not actually compel arbitration and permits the commencement of an action in a court of law, and that the clause is, at best, ambiguous (Affirmation of Albert Rizzo, Esq., ¶ 11). Finally, Sozzi contends that Fortis waived any right to arbitrate this dispute by affirmatively participating in the judicial process.
I
In order to enforce an arbitration clause in an unsigned agreement, it must be shown that the other party's conduct evinces an intent to be bound (God's Battalion of Prayer Pentacostal Church, Inc. v Miele Assocs., LLP,(6 NY3d 371, 374 [2006]; Rudolph & Beer, LLP v Roberts, 260 AD2d 274, 275-76 [1st Dept 1999]). Although Sozzi did not sign the insurance policy or personally procure the coverage, it is evident that he intended to be bound by it: Sozzi filed a damages claim under the insurance policy (Affirmation of Albert Rizzo, Esq., ¶ 12), and in the second amended complaint, Sozzi asserts a claim for breach of contract based upon it, alleging that Fortis breached the insurance policy by refusing to pay in full for the damage to his items (Second Amended Complaint, ¶¶ 30-39). Thus, by elsewhere acknowledging and relying upon the insurance policy, Sozzi cannot now seek to disclaim that portion of the same insurance policy that contains the arbitration clause on the ground that he did not sign it or see it until his items were shipped (see God's Battalion of Prayer Pentacostal Church, Inc., 6 NY3d at 374 [an arbitration clause in an agreement was enforceable even though the agreement was not signed, because it was evident that the parties intended to be bound by it where the plaintiff, the party seeking to disclaim the arbitration clause, alleged that the defendant breached the agreement, and the plaintiff otherwise operated under the terms of the agreement]; see also Rudolph & Beer, LLP, 260 AD2d at 275-76). Sozzi is not asserting that the insurance policy is otherwise unenforceable, and may not select which provisions suit his purposes, disclaiming part of the insurance policy while alleging breach of the remainder (id.). Additionally, adopting the interpretation that Sozzi urges would render a portion of the insurance policy meaningless. A contract should be read to give effect to all of its provisions, so as not to render any portion superfluous (Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]).
Sozzi relies upon Gordon v Shearson Lehman Bros., Inc. (1993 WL 361594 [SD NY 1993]) and Ben-Reuven v Kidder Peabody & Co. (139 Misc 2d 90 [Sup Ct, Kings County 1988]), for the proposition that, while an arbitration agreement need not be signed by both parties, there must be a meeting of the minds in order to be enforceable as against the parties. However, under the facts and circumstances surrounding the formation and execution of the agreements in both of these cases cited by Sozzi, there was no conduct on the part of the plaintiffs evincing consent to the terms of the agreements containing the arbitration clauses (Ben-Reuven, 139 Misc 2d at 93).
Here, in contrast, there is conduct on Sozzi's part evincing an intent to be bound by the terms [*3]of the insurance policy: namely, Sozzi asserted a claim for breach of contract, and filed an insurance claim for damages under it. Sozzi cannot simultaneously seek to assert a claim for breach of contract based upon a portion of the insurance policy, while repudiating another portion of the same agreement containing the arbitration clause (God's Battalion of Prayer Pentacostal Church, Inc., 6 NY3d at 374; In re Blumenkrantz, 14 Misc 3d 462 [Sur Ct, Nassau County 2006]).
Moreover, Sozzi's contention that he cannot be compelled to arbitrate his insurance claim against Fortis because it is "inexorably intertwined" with his negligence claims against co-defendants Moishe's and Omega, is without merit. Sozzi's claim for breach of contract, arising out of Fortis's alleged refusal to pay the full value of Sozzi's claimed losses under the insurance policy (Second Amended Complaint, ¶ 37), emanates from a different set of facts and legal issues as the claims for negligence asserted against Moishe's and Omega, for the negligent packing, moving, shipping and transporting of Sozzi's items (see Wien & Malkin, LLP v Helmsley Spear, Inc., 307 AD2d 808, 809 [1st Dept 2003]).
II.
Arbitration agreements are interpreted under accepted rules of contract law (Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, Inc., 85 NY2d 173 [1995]). It is for the court in the first instance to determine whether the parties agreed to submit their dispute to arbitration (State of New York v Philip Morris Inc., 30 AD3d 26, 31 [1st Dept], lv granted 7 NY3d 716 [2006], affd 8 NY3d 574 [2007]). Although arbitration is a favored method of dispute resolution (Merrill Lynch, Pierce, Fenner, & Smith, Inc. v Benjamin, 1 AD3d 39, 43 [1st Dept], affd 2003 NY Slip Op 17750 [1st Dept 2003]), absent evidence that affirmatively establishes that the parties agreed to arbitrate their disputes, parties will not be compelled to arbitrate (Waldron v Goddess, 61 NY2d 181, 183 [1984]). The agreement must be clear, explicit and unequivocal (id.).
Paragraph 12 of the insurance policy states,
SUIT AGAINST THE UNDERWRITER: No suit or action against the Underwriter for recovery of any claim by virtue of this insurance shall be sustained in any Court of Law, Equity or Arbitration unless commenced within (1) year from the time the loss occurred, or, if such limitation is not valid by the law of the place where the policy is issued, within the shortest contractual period of limitation provided by such law. All such suits when timely filed shall be resolved in mandatory arbitration pursuant to rules of the American Arbitration Association.
Sozzi urges that the provision is ambiguous because the first sentence provides for suits or actions to be brought in "any Court of Law, Equity or Arbitration" (plaintiff's emphasis), as opposed to requiring arbitration of all disputes. This argument is not compelling.
In interpreting contracts, "[i]t is also important to read the document as a whole to ensure that excessive emphasis is not placed upon particular words or phrases" (South Road Associates, LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005]). One sentence may not be read in isolation ignoring that which follows. The plain language of the provision contained in the insurance policy unequivocally compels arbitration, by stating that all suits against the insurer arising out of the insurance policy "shall be resolved in mandatory arbitration." By using the expansive words "all such suits," the insurance policy makes explicit that all disputes that are connected to the insurance [*4]coverage are arbitrable (State of New York, 8 NY3d at 580). Although the first sentence of the provision contemplates that suits or actions against the Underwriter may start in a court of law, the following sentence clearly indicates that all such suits or actions shall be ultimately resolved by arbitration. Thus, there is no ambiguity or conflict between the two provisions.
III
Finally, Sozzi urges that Fortis waived its right to demand arbitration, maintaining that Fortis's affirmative participation in this litigation amounts to a waiver. The legal acts taken by Fortis are the demand that all claims be submitted to arbitration (Affidavit of Mika T. Hallakorpi, ¶ 11), and the instant motion to compel arbitration and to dismiss Pac Global from the action. Fortis's minimal participation in this litigation taken solely to compel arbitration was not inconsistent with its position and did not waive the right to compel arbitration (compare Accessory Corp. v Capco Wai Shing, LLC, 39 AD3d 344, 345 [1st Dept 2007] [participation in the discovery process amounts to an affirmative acceptance of the judicial forum with a concomitant waiver of any right to arbitration]; Sullivan v Kisly, 93 AD2d 783, 783 [1st Dept 1983] [affirmative participation in litigation evidenced by the defendant's demanding an examination before trial and the defendant himself submitting to an examination]).
CONCLUSION
Accordingly, it is
ORDERED that the motion to dismiss the complaint as against Pac Global Insurance Brokerage, Inc. is granted pursuant to the stipulation of the parties, and the complaint is hereby severed and dismissed as against defendant Pac Global Insurance Brokerage, Inc.; and it is further
ORDERED that the motion by Fortis Corporate Insurance N.V. to compel arbitration and to stay this action is granted; and it is further
ORDERED that Vittorio Sozzi shall arbitrate his claims against Fortis Corporate Insurance N.V. in accordance with the insurance policy; and it is further
ORDERED that the third cause of action of the second amended complaint is stayed pending final determination of the arbitration.
Dated: August7 , 2007ENTER:
New York, New York
____________/s/__________________J.S.C.
Footnotes
Footnote 1: By stipulation dated May 3, 2007, the parties agreed that the action be discontinued as against Pac Global.
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