Essex Ins. Co. v Mondone

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Essex Ins. Co. v Mondone 2011 NY Slip Op 33396(U) December 13, 2011 Sup Ct, Nassau County Docket Number: 12466/09 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ... [* 1] ..... SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. THOMAS P. PHELAN. Justice TRIAL/IAS PART 2 NASSAU COUNTY ESSEX INSURANCE COMPANY Plaintiff( s), ORIGINAL RETURN DA TE:08/29/11 SUBMISSION DATE: 10/12/11 INDEX No. : 12466/09 -against - JOSEPH J. MONDONE , JR. , CHRISTOPHER P. LANE , JENNIFER A. LANE , TRUE BUILDING CORP. , and KEVIN BEVILACQUA MOTION SEQUENCE #2 Defendant( s). The following papers read on this motion: Notice of Motion..................................... ............... Answering Papers.................................................. Affirmation of Joseph W. Szalyga............................... Affidavit of Rick Strickler. . Reply...................................... ............. .............. Plaintiff' s Memorandum of Law......................... ..,..... Motion by plaintiff Essex Insurance Company (" Essex ) for an order pursuant to CPLR 3212 granting it summary judgment declaring that Essex has no duty to defend or indemnify its insured , True Building Corp. (" True ) or its President Kevin Bevilacqua (" Bevilacqua ) with respect to the underlying personal injury lawsuit brought by Joseph J. Mondone , Jr. (the " Mondone lawsuit" ) or satisfy any judgment which Joseph J. Mondone , Jr. ("Mondone ) may obtain against lrue Bevilacqua or any other defendants in the Mondone lawsuit is denied. ,' ,' [* 2] RE: ESSEX INSURANCE v. MONDONE , et al. Page 2. On or about February 24 , 2009, defendant Mondone was allegedly injured while performing electrical work at the residence of Christopher P. Lane (" Lane ) located at 60 Stevens Street, Oceanside , New York. Mondone Electric, Inc. was retained by defendant Lane as an electrical contractor or subcontractor to perform certain electrical work in connection with a home renovation at the premises. Essex issued a commercial general liabilty insurance policy to True , policy number 3CY6997 , for the policy period January 17 2009 , until January 17 , 2010 , which was in effect on the date of Mondone ' s accident. Upon receipt of the Summons and Complaint in the Mondone lawsuit , Essex disclaimed coverage and commenced the instant declaratory judgment action seeking a declaration that: (1) it is not obligated to defend or indemnify True or Bevilacqua for the Mondone lawsuit; and (2) it is not obligated to pay any sums of money awarded to Mondone in the Mondone lawsuit. In support of its motion for summary judgment , Essex relies upon the exclusion in Paragraph VII , sub-section " G" , of the policy s Combination General Endorsement Form ME- 001(09/07), which states: VII. This insurance does not apply to ' bodily injury , or property damage personal injury advertising injury , or any injury, loss or damages including consequential injury, loss or damage , arising out of, caused or contributed to by: G. any injury sustained by any contractor , self-employed contractor , and/or subcontractor , or any employee , leased worker , temporary worker or volunteer help of same (emphasis added) . Essex asserts that the endorsement clearly states that the policy does not apply to any damage arising out of any injury sustained by any contractor or any contractor employees and Mondone was an employee of a contractor or subcontractor at the subject site. ,' [* 3] ,' ,' Page 3. RE: ESSEX INSURANCE v. MONDONE , et al. Further , the Essex policy contains an exclusion specifically stating that the Essex policy does not provide coverage for any injury or damage arising out of, caused by, or contributed to as a result of negligent hiring, training, placement , supervision or monitoring of others by insured at the worksite. Specifically, Paragraph VII , subsection " , of Combination General Endorsement ME-001 (09/07) states: This insurance does not apply to ' bodily injury property damage personal injury advertising injury ' or any injury, loss or damages , including consequential injury, loss or damage arising out of, caused by or contributed to by: C. as a result of the alleged negligence or other wrongdoing the hiring, training, placement , others by insured; supervision , or monitoring of Essex contends that since the Mondone lawsuit alleges that Mondone suffered.injury because True or Bevilacqua were negligent in failing to oversee plaintiff Mondone at the worksite , the exclusion contained in Paragraph VII , sub-section " , of the policy s Combination General Endorsement ME- 001 (09/07) applies, and there is no coverage for the Mondone lawsuit under the Essex policy. Essex also relies upon the deposition testimony and affidavit of Rick Strickler , an Executive Claims Examiner with Market Service Incorporated , Claims Service Manager for Essex. In opposition to the motion , counsel for True and Bevilacqua argue that the subject exclusion in effect renders the policy meaningless and tantamount to fraud and that it is violative of public policy and should be rendered void. Counsel for Mondone contends that the provision at issue excludes coverage for an injury " arising out of an " injury " and is ambiguous and that the policy provision in question is inapplicable since Mondone ' s injury was not caused by an injury but rather was caused by the negligence of True as already determined by Justice Woodard in her order dated August 16, 2011 , and entered on August 23, 2011. [* 4] RE: ESSEX INSURANCE v. MONDONE , Page 4. et al. The law governing the interpretation of exclusionary clauses in insurance policies State Farm Fire & is highly favorable to insureds Cas. Co. 12 NY3d 302 , 306 (2009)). An exclusion must be specific and clear , and wil be narrowly construed and enforced only when the insurer establishes that the pertinent language is " subject to no other reasonable interpretation (Seaboard Sur. see Pioneer Tower Owners Gillette Co. 64 NY2d 304 (Pioneer TowerOwners Assn. Assn. , 311 (1984); Co. Cas. Co., supra; Automobile State Farm Fire Ins. Co. of Cook, 7 Hartord NY3d 131 , 138 (2006)). If the language is ambiguous , the ambiguity wil be construed in favor of the insured , and " the test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured State see Villanueva Farm Ins. Cos. 88 NY2d 321 , 326(Matter of Mostow upon reading the policy and employing common speech" 327 (1996) (citations omitted); Preferred Mut. Ins. Co. 48 AD3d 1015 , 1016 (3d Dept 2008); Essex Ins. Co. 82 AD3d 1326 (3d Dept 2011)). Grande Stone Quarry, LLC, Further , the insurer b ars the heavy burden of " establishing that the exclusions or exemptions apply in the particular case , and that they are subject to no other Gillette Co. 64 NY2d at 311; reasonable interpretation 88 NY2d at 307; Pioneer Tower Clermont Armory, LLC 84 AD3d 1168 (2d (Seaboard Sur. Co. Cas. Co., State Farm Fire Owners Assn. Insurance Co. of Greater New York Dept 2011)). Indeed , the courts have enforced policy exclusions only where they have found them to " have a definite and precise meaning, unattended by'danger or misconception. . . and concerning which there is no reasonable basis for a difference of opinion Breed Cas. Co. , supra quoting State Farm Fire Pioneer Tower Owners Assn. Insurance Co. ofN. Am. 46 NY2d 351 353 (1978). Applying these principles to the case at bar , we cannot say that the event that caused plaintiff's injury was unambiguously excluded from the coverage of this policy. In view of the foregoing, the motion is denied. This decision constitutes the order of the court. HON THO AS P. PHELA Dated: /a- J3-1 ( ENT DEC 16 2011 NAS8AU COUNTY CM CLIRK' I O'FtCE [* 5] RE: ESSEX INSURANCE v. MONDONE , et al. Attorneys of Record Clausen Miller P. C. Attn: Joseph W. Szalyga, Esq. Attorneys for Plaintiff One Chase Manhattan Plaza New York , NY 10005 Sanders , Sanders , Block , Woycik , Veiner & Grossman , P. Attorneys for Defendant Joseph Mondone , Jr. 100 Herricks Road Mineola , NY 11501 Devitt Spellman Barrett , LLP Attorneys for Defendant Christopher and Jennifer lane 50 Route 111 Suite 314 Smithtown , NY 11781 Hession Bekoff Cooper & LoPicollo , LLP Attorneys for Defendants True Building Corp. and Kevin Bevilacqua 1103 Stewart Avenue , Suite 200 Garden City, NY 11530 Page 5.

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