Live Nation Worldwide, Inc. v Best Buy Stores, L.P.

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Live Nation Worldwide, Inc. v Best Buy Stores, L.P. 2020 NY Slip Op 32366(U) July 20, 2020 Supreme Court, New York County Docket Number: 450475/2020 Judge: Alan C. Marin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] NEW YORK COUNTY CLERK 07/20/2020 05:00 P~ NYSCEF DOC. NO. 43 INDEX NO. 450475/2020 RECEIVED NYSCEF: 07/20/2020 SUPREME COURT OF TI IE STATE OF NEW YORK COUNTY (W NEW YORK LlVE NATION WORLDWIDE, INC. and LIVE NATION MARKETING, INC., Plaintiffs, DECISION and ORDER Index no. 450475/2020 Motion no. 001 -against- BEST BUY STORES, LP., J)efcndanL The Court has considered efiled documents 11 through 17; 19 through 31; 34 through 42. This is a case involving plaintiffs' insurance coverage regarding the lawsuit brought by Mark Perez, which was tried before a jury with a verdict in Mr. Perez's favor on December 9, 2019 (Perez v Beach Concerts, Inc., index no. 158373/2013). Plaintiffs Live Nation Worldwide, Inc. and Live Nation Marketing, Inc. ("Live Nation" 1) arc licensed to manage and operate the theater at .Tones I3each in Nassau County. In such capacity, they offer companies the use of vendor booths so as to advertise their products or services. To that end, Best Buy and Live Nation entered into a sponsorship agreement on about May 7, 2013, which, among other things, granted I3est Buy the right: to place an agreed-upon number of vinyl signs along the main walkway of the orchestra; to distribute literature and promotional items for up to ten agreed-upon concerts; to have one metal trussing display of fifteen by twenty feet to conduct interactive promotional activity; and to show a 30-second commercial ten times during each concert on the theater's interactive TV monitors and video screens. 1 l'ursuanl Lo paragraph 5(a)(v) of the sponsorship agreement, Best Buy agreed to "list Manager LLive Nation Marketing, Inc.] {and its land lord, if any), and their respective parents, members, partners, a ffi Iialcs, di visions and subsidiaries, and their respective officers, directors, shareholders, employees, agents tmd representatives as 'Additional Insureds' wilh respect to any and all Claims arising from Sponsor's operations·· (document 13, p. 3). At all relevant times, Live Nation Marketing, lm:. has been a wholly owned subsidiary of Live Nation Worldwide, Inc.; sec the June l 5, 2020 affidavit of Michael (i_ Rowles, executive vice-president, general counsel and sccrclary of Live Nation Entertainment, Inc. (document J9). 2 of 6 [* [FILED: 2] NEW YORK COUNTY CLERK 07/20/2020 05:00 P~ NYSCEF DOC. NO. 43 INDEX NO. 450475/2020 RECEIVED NYSCEF: 07/20/2020 Justice Gerald Leibovits described Mark Perez's accident in his Decision and Order of June 30, 2016, which granted him summary judgment against Live Nation under Labor Law§ 240 (1). The citations arc omitted; the information was all supplied by Mr. Perez; Michael Brogden, the operator of the forklift, was a Live Nation employee. According to plaintiiI he entered into an agreement with ... Best Buy to create artwork to improve the aesthetic design to Best Buy's vendor booth at Jones Beach Theater. On June 26, 2013, plaintiff "ass isl[ed J" defendant Brogden in bui \ding the second level to the Best Buy booth. The first level to the booth had already been erected. According to plaintiff, the first level measured" I 0 feet deep, 20 feet wide and 10 feet high." Brogden was operating a forklift to "lift lhe horizontal sections of the aluminum trussing lthe second leve!J, approximately 15 feet high, to the lop of the vertical sections of the structure." Plaintiff was standing to feet off the ground on the first level while 13rogden was operating the fi:lrklill. According to plaintiff, "Brogden, while operating the forklill, hit the structure, causing [plaintiff] to plummet to the ground." (2016 WL 3566115). The First Department, in affirming Justice Lebovits, indicated that the work required more than one person: "When he fell, plaintiff was helping set up the second tier truss system of a sponsorship booth ... ]which] extended the height of the booth from I 0 foet to 16 feet [and which l was comprised of several inter Iock i ng parts that were connected in a specific way, and required a forklift and several people to construct it" (154 AD3d 602). Similarly from Justice Lebovits' Order: "[Perez I explained at his ebt that he needed help to assemble the trussing -- the second tier to the Best Buy booth ... Once he realized that 13rogdcn was the only person whom Live Nation sent to help him, plaintiff decided to assemble the trussing." 2 Live Nation docs not dispute that the proximate cause of Perez's accident was the negligent operation of the forklift by Michael Brogden. Hoth sides agree that the sole remaining cause of action is count four of Live Nation's complaint, for breach of contract, and they use the identical language: "Did the Sponsorship Agreement require Best Buy to purchase additional insured coverage fr>r Live Nation that would cover Perez's claim?" 3 Each moves for summary judgment thereon. * * * 2 In finding liability under Labor I ,aw §240 (I), the First Department upheld Justice Lebovits' detem1ination that Mark Perez was engaged in the alteration of the ex isling structure at the time of the accident, not in decorative modi licatlon; see SaiJ1f v Syracu.w Supply Co., 25 NY3 d l 17. 3 Defendant's Reply Affirmation (document 41, §3) and plaintiffs' Affirmation in Opposition (document 3 R, §4 ); section 19 of plaintiffs' A flirmation phrases it a Iittle di fTen::nt ly. 2 3 of 6 [*[FILED: 3] NEW YORK COUNTY CLERK 07/20/2020 05:00 P~ NYSCEF DOC. NO. 43 INDEX NO. 450475/2020 RECEIVED NYSCEF: 07/20/2020 Consider the insurance contract at issue in Burlington Ins. Co. v NYC Tr. Auth., 29 NY3d 313, where an additional insured under the commercial general liability policy (COL) was covered only with respecl to bodily injury or property damage "caused, in whole or in part, by your acts or omissions" [i.e., that of the insured, excavator contractor, BSll A Transit Authority employee fell off a platfonn when he tried to avoid an explosion after a BSI machine touched a live electrical cable buried in concrete. Inasmuch as additional insured Transit Authority had not identified, marked or protecled the buried cable, nor turned it ol1~ I3SI was not at fault and therefore, the Transit Authority was not an additional insured under the policy .. The Tlurlington policy is one that required proximate cause, unlike insurance contract language cast in terms of "arising from" - - as is the case with our sponsorship agreement. The Court of Appeals explained that "arising from" is a term that "refers to a link in the chain leading to an outcome ... that 'any given event, including an injury, is always the result of many causes''' and that not all such causes result in liability. "In contrast 'proximate cause' refers to a 'legal cause' to which the Court has assigned liability." 29 NY3d at 321. The sponsorship agreement required Rest Ruy to ensure that all its contractors maintain insurance in specified amounts for commercial general liability and to list them "as 'Additional Insureds' with respect to any and all claims arising from Sponsor's operations." 4 Defendant argues that Mark Perez could have just as easily been injured being run over by Brogden's forklift while walking in a parking lot at the facility. This hypothetical was not hypothetical in C'hrisl the King Regional J/igh ,\'chool v Zurich Ins. C'o. of1V. Am., 91 J\D3d 809, 2d Dept, Iv denied 19 NY3d 806. A company, Talent All American, rented the school's auditorium and three classrooms for a two-day dance competition, during which a woman fell while walking from the parking lot to the front entrance. Such did not come within the ''arising from" clause of the insurance contract: Rather, All American's "operations" at lhe school merely furnished the occasion for the acci<lent, much like in Worth Consfr. Co., where the fact that the named-insured subcontractor installed a staircase on which the injured plaintiff fell, thus furnishing "the situs of the accident," did not demonstrate that the accident, caused by the installation of lireproofing on the slaircase by another subcontractor, arose from the named-insured subcontraclor1s "operations" (Worth Constr. Co .. Inc. v Admiral Ins. Co., 10 NY3d 411, 416). In Regal Consfr. Corp v National Union Fire Ins. Co. ,d.Pittshurgh, Pa, 15 NY3d 34, the City of New York had engaged URS Corporation as the construction manager for a renovation project. URS, by written agreement, hired Regal Construction Corporation as the prime contraclor, and the agreement required Regal to purchase a CGL policy naming URS as an additional insured. Regal's project manager, Ronald LeClair, was walking through the work site in an area that was 1 Paragraph S(a)(v) of the sponsorship agreement (document 13, pp 2-3). 3 4 of 6 [*[FILED: 4] NEW YORK COUNTY CLERK 07/20/2020 05:00 NYSCEF DOC. NO. 43 P~ INDEX NO. 450475/2020 RECEIVED NYSCEF: 07/20/2020 in the process of demo I ition and had sheets of plywood spread over steel floor joists. When LcClair stepped from the plywood onto a floor joist to show which wall needed to be demolished, he slipped on the joist that had just been painted by URS employees. The additional insured endorsement provided that URS was an additional insured "only with respect to liability arising out of I Regal'sl ongoing operations." The Court of Appeals stated: We have interpreted the phrase "arising out of' in an additional insured clause to mean "originating from, incident to, or having connection with" (Maroney v New York Cent. Mui. Fire Ins. Co., 5 NY3d 467, 472). It requires "only that there be some causal relationship between the injury and the risk for which coverage is provided" ... That the underlying complaint alleges negligence on the part of URS and not Regal is of no consequence, as URS's potential liability for LeClair's injury "arose out of' Rega!'s operation and, thus, URS is entitled to a defense and indemnification according to the terms of the CGL policy. (15 NY3d at 38). Admiral Ins. Co v Amer;can Empire Surplus Unes Ins_ Co., 96 AD3d 585, l-'1 Dept, goes into some depth on why Regal and Worth, applying the same principle, came out diffcrently. 5 The case involved a construction project with Cross County Contracting as the contractor for the concrete superstructure. Cross County subcontracted the steel reinfi:xcing work to B & R Rebar Consultants, Inc. Li Xiong Yang, an employee of B & R Rebar, was struck by falling plywood while straightening rebar dowel rods that extended from the concrete floor so that pre-formed concrete could be attached to the rods and create a wall. Cross Country was an additional insured under the primary policy issued to B & R Rebar, "but only with respect to liability arising out of fB & R Rebar's] operations" (96 AD3d at 587). Rebar had been found to be not responsible in any way for Mr. Yang's injuries. The First Department held that Cross County was a covered additional insured inasmuch as the accident arose from B & R Rebar's operations. To answer the dispositive question: the sponsorship agreement required Best Buy to purchase additional insured coverage for Live Nation that would cover Perez's claim, which arose from the operations of the primary insured. * 5 * * See also the Second Circuit's Federal Ins. Co. v American Home Assur. Co., 639 F3d 557. 4 5 of 6 [*[FILED: 5] NEW YORK COUNTY CLERK 07/20/2020 05:00 NYSCEF DOC. NO. 43 P~ INDEX NO. 450475/2020 RECEIVED NYSCEF: 07/20/2020 NOW therefore, in view of the foregoing, IT JS ORDERED, that motion no. 001 by plainliffs is granted and defendant's cross motion is denied. IT IS FURTHER ORDERED that a conference on damages is scheduled for August 19 at 11 :30 a.m., or at such other day and time as is mutually agreeable. July 20, 2020 ENTER /<! /;, /A /,? . , 41' ,,Y'------ Alan C. Marin ALAN C. MARIN JUSTICE OF THE SUPREME COURT J.S.C. 6 of 6

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