Opinion
2011-11-1
EMPIRE STATE SHIPPING SERVICE, LTD., et al., Plaintiffs–Appellants,v.HANOVER INSURANCE COMPANY, Defendant–Respondent.
James F. Cirrincione, Bronx, for appellants.Callan, Koster, Brady & Brennan LLP, New York (Michael P. Kandler of counsel), for respondent.
James F. Cirrincione, Bronx, for appellants.Callan, Koster, Brady & Brennan LLP, New York (Michael P. Kandler of counsel), for respondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered on or about August 17, 2010, which denied plaintiffs' motion for summary judgment, and granted defendant insurer's cross motion for summary judgment dismissing the complaint and a declaration that it had no duty to defend or indemnify plaintiffs with regard to the underlying action, unanimously affirmed, with costs.
We reject defendant's argument that plaintiffs failed to preserve their contentions pertaining to the “accrual dates” of the underlying complaint's causes of action. While they may not have been framed in quite the same manner, plaintiffs' arguments can fairly be construed as having been made before Supreme Court and are therefore preserved ( see Howard S. v. Lillian S., 62 A.D.3d 187, 190, 876 N.Y.S.2d 351 [2009], affd. 14 N.Y.3d 431, 902 N.Y.S.2d 17, 928 N.E.2d 399 [2010] ).
The Businessowners Policy provides coverage for “bodily injury” but “only if” it is caused by an “occurrence” and the bodily injury “occurs during the policy period.” Supreme Court properly determined that the first and second causes of action in the underlying action, which allege negligent and intentional infliction of emotional distress, do not fall within the scope of “bodily
injury” because the earliest that harm is alleged to have occurred is in the fall of 2005, when the plaintiff in the underlying action learned of the alleged mishandling of her son's remains. This was over two years after plaintiff Empire cancelled its policies with defendant, effective June 20, 2003 ( see Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 877 N.Y.S.2d 300 [2009] ).
While we agree with plaintiffs that Supreme Court should not have characterized the only damages alleged in the underlying action as emotional distress, this error was harmless because coverage would not have been triggered in any event. The only causes of action for which this error could have triggered coverage are the third and fifth causes of action for negligence and negligent misrepresentation. It is alleged that the plaintiff in the underlying action “was caused, and shall in the future be caused, to suffer severe pain and suffering, severe emotional distress and harm, financial or economic loss, including but not limited to, present and future lost wages, and other damages.” While these causes of action may contain allegations that Empire was negligent during the policy period, there is no allegation that the plaintiff in the underlying action suffered “bodily injury” during the policy period.
We have considered plaintiffs' remaining contentions, and find them unpersuasive.