Opinion
Index No. 714076/2017 Motion Sequence No. 2
12-19-2018
ARCH SPECIALITY INSURANCE COMPANY, Plaintiff, v. RLI INSURANCE COMPANY, Defendant.
Unpublished Opinion
Submit Date: 12/10/18
Joseph J. Esposito, Judge
The following papers numbered 48 to 83 were read on this motion by plaintiff for summary judgment, pursuant to CPLR 3212, against defendant, RLI Insurance Company (RLI), seeking a declaration that Arch's insured, Triangle Court, LLC (Triangle Court) "is entitled to additional insurance coverage under the commercial general liability policy issued by RLI to JKT Construction, Inc. (JKT), in connection with an underlying bodily injury action."
Papers Numbered
Notice of Motion-Affirmations-Affidavit-Exhibits ............................. .48-68
Answering Affirmation-Affidavit-Exhibits ......................................... 69-82
Reply Memorandum of Law ................................................................... 83
Upon the foregoing papers, it is ordered that plaintiffs motion is determined as follows:
Triangle Court leased premises 442-456 Grand Street, Brooklyn, New York from Keap Grand, LLC (Keap). During the term of the lease, Triangle Court hired D&S Iron Works, Inc. (D&S) to perform work at the premises. Triangle Court, as "Owner," contracted with JKT to be "General Contractor" for said project. Said contract required JKT to procure commercial general liability insurance with stated limits. Thereafter, a written "Hold Harmless Agreement" between Triangle Court and JKT further required JKT to name "the Owner" as an additional insured on the policy procured.
D&S was the employer of one Louis A. Portillo, who allegedly was injured while working at the Triangle Court-leased premises on April 9, 2012. Portillo sued Keap, and another party, on July 13,2012, in Kings County, under Index No. 14340/2012, alleging negligence and violations of the Labor Law. Thereafter, Keap commenced a third-party action against Triangle Court, seeking common-law and contractual indemnification, contribution, and breach of contract for Triangle Court's alleged failure to procure insurance pursuant to the lease. In May 2013, plaintiff commenced another action arising from the April 9, 2012 accident, this one in Queens County, bearing Index No. 10458/2013, against Triangle Court and JKT, claiming negligence and Labor Law violations. The Kings and Queens actions were consolidated in Queens County, in 2015.
Arch tendered Triangle Court's defense to, and indemnification for, Portillo's claim to JKT in 2012, which tender was denied by RLI. The instant action seeks "a declaration that RLI is obligated to defend and indemnify Triangle Court in the Portillo action as an additional insured under the JKT policy." Arch moves for partial summary judgment on the issue of Triangle Court being an additional insured.
JKT obtained a commercial general liability policy with RLI, which stated, in relevant part, that an additional insured is 'the person or organization shown in the Schedule." The subject endorsement's Schedule herein lists only "Owners where required by written contract, signed prior to loss." Movant contends that the "Hold Harmless Agreement" names Triangle Court as "owner" and, therefore, the required JKT-procured policy with RLI makes Triangle Court an additional insured under it. In opposition, RLI contends that it has no duty to defend Triangle Court as an additional insured in the underlying personal injury action, because Triangle Court was not the "owner" of the subject premises on the date of the accident.
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2009]; Santiago v Joyce, 127 A.D.3d 954 [2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues... or where the issue is 'arguable'" [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]; see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2011]; Dykeman v. Heht, 52 A.D.3d 767 [2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2002]; see Chimbo v Bolivar, 142 A.D.3d 944 [2016]; Bravo v Vargas, 113 A.D.3d 579 [2014]).N.Y.2d 557 [1980]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70N.Y.2d966 [1988]; Winegrad v. New York Med. Ctr., 64N.Y.2d 851 [1985]).
There is no argument that Triangle Court was not named as an insured on the face of the subject liability policy from RLI to JKT. The "well-understood meaning" of "additional insured" is "an entity enjoying the same protection as the named insured" (Pecker Iron Works of N. Y. v Traveler's Ins. Co., 99 N.Y.2d 391,393 [2003]). "A party is not entitled to coverage if it is not named as an insured or additional insured on the face of the policy as of the date of the accident for which coverage is sought" (New York State Thruway Auth. v Ketco, Inc., 119 A.D.3d 659, 661 [2d Dept 2014]). It is for the courts to determine whether a party is an "additional insured" or not, "from the intention of the parties to the policy, as determined from the four comers of the policy itself' (140 Broadway Prop, v Schindler El. Co., 73 A.D.3d 717,718 [2d Dept 2010]; see 77 Water Street, Inc. v JTC Painting &Decorating Corp., 148 A.D.3d 1092 [2d Dept 2017]).
"Principles of contract interpretation apply equally to insurance policies" (Gilbane Bldg. Co./TDX Cont. Corp. v St. Paul Fire and Mar. Ins. Co., 143 A.D.3d 146,151 [1st Dept 2016]), and the extent of coverage is controlled by the relevant policy terms (see Sanabria v American Home Assur. Co., 68 N.Y.2d 866 [1986]; Corbel Constr. Co. vArch Specialty Ins. Co., 160 A.D.3d 703 [2d Dept 2018]; Brooklyn View v PRP, LLC, 159 A.D.3d 865 [2d Dept 2018]; Catholic Health Servs. of Long Is., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 46 A.D.3d 590 [2d Dept 2007]). In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (see White v Continental Cas. Co., 9 N.Y.3d 264 [2007]; Lissauer v GuideOne Specialty Mut. Ins., 161 A.D.3d 974 [2d Dept 2018]; Arthur Vincent &Sons. Constr., Inc. v Century Sur. Ins. Co., 156 A.D.3d 853 [2d Dept 2017]; Conlon v Allstate Veh. & Prop. Ins. Co., 152 A.D.3d 488 [2d Dept 2017]).
When an agreement amounts to a "clear and complete document," a court should not interpret it "so as to render any term, phrase, or provision meaningless or superfluous" (Mahmood v County of Suffolk, 2018 NY Slip Op. 07715, *2 [2d Dept 2018]; see Batales v Friedman, 144 A.D.3d 849 [2d Dept 2016]), and such "writing should ... be enforced according to its terms" (Vermont Teddy Bear Co. v Madison Realty Co., 1 N.Y.3d 470, 475 [2004], quoting W.W.W. Assoc, v Giancontieri, 77 N.Y.2d 157, 162 [1990]). In the case at bar, the term "owner" is clear and unambiguous, and the unmistakable policy language refers to the ordinary meaning of the term, i.e., the legal titleholder of the property. Plaintiffs reliance on Demartino v CBS Auto Body &Towing, 208 A.D.2d 886 (2d Dept 1994), and others of that ilk, for the determination that "the term 'owner' encompasses (any) party with an interest in the property" (at 887), is misplaced. Such declaration, made in that decision with regard to liability under Labor Law §§ 240 and 241, is immediately preceded by the words "within this statutory context," thus removing it from consideration in the instant insurance policy context.
Plaintiffs further argument, that "[t]he title of the endorsement, 'Owners, Lessees or Contractors,' indicates the endorsement applies to each of the aforementioned categories of 'owners'," is equally unavailing. The title of the subject endorsement begins with "Additional Insured," and then lists the three terms mentioned above. The expressive usage of the conjunction "or" denotes different possibilities, as opposed to using the inclusive conjunction "and," which was not employed herein. Clearly, given the choice of including any combination of "owners," "lessees," and "contractors," the drafters of the endorsement herein chose only to apply it to "owners," to the exclusion of the others. Plaintiff has failed to present evidence demonstrating any ambiguity in the use or common meaning of such language.
Additionally, the argument that because the Hold Harmless Agreement refers to Triangle Court as the "Owner," that must be the fact, is without merit. The parties do not contest the facts that Keap was the record titleholder to the subject premises on the date of the accident, and Triangle Court was merely a lessee. Triangle Court's Manager and "50% interest" member, Meir Babaev, admits "Triangle Court leased from... (Keap)" the subject premises. As such, Arch has failed to demonstrate entitlement to partial summary judgment.
Plaintiffs remaining arguments and contentions either are without merit or need not be addressed in light of the foregoing determination.
Accordingly, Arch Specialty Insurance Company's motion seeking partial summary judgment, declaring that RLI must defend Triangle Court in connection with the underlying personal injury action, is denied.