Opinion
13236 Index No. 655953/18 Case No. 2020-02457
03-02-2021
WMOP, LLC, et al., Plaintiffs–Respondents–Appellants, v. SCOTTSDALE INSURANCE COMPANY, Defendant–Respondent, Mt. Hawley Insurance Company, Defendant–Appellant.
Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Joseph D'Ambrosio of counsel), for appellant. Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for respondents-appellants. Tressler LLP, New York (Courtney E. Scott of counsel), for respondent.
Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Joseph D'Ambrosio of counsel), for appellant.
Herzfeld & Rubin, P.C., New York (David B. Hamm of counsel), for respondents-appellants.
Tressler LLP, New York (Courtney E. Scott of counsel), for respondent.
Gische, J.P., Mazzarelli, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered May 11, 2020, which granted the motion of defendant Scottsdale Insurance Company (Scottsdale) to dismiss the complaint as against it and declared that Scottsdale does not have a duty to defend or indemnify plaintiffs (collectively WMOP) in the underlying action, and denied Mt. Hawley's motion to dismiss the complaint as against it, unanimously modified, on the law, to grant Mt. Hawley's motion and it is declared that Mt. Hawley has no duty to defend or indemnify WMOP in the underlying action, and otherwise affirmed, without costs.
The May 19, 2017 letter from a law firm, which requested records from WMOP but made no demands for relief, cannot be deemed a "claim" made during the Scottsdale policy period (see Purcigliotti v. Risk Enter. Mgt. Ltd., 240 A.D.2d 205, 206, 658 N.Y.S.2d 296 [1st Dept. 1997] ; Evanston Ins. Co. v. GAB Bus. Servs., 132 A.D.2d 180, 185, 521 N.Y.S.2d 692 [1st Dept. 1987] ). Despite the fact that WMOP was contacted by Scottsdale for additional information regarding the matter, it failed to comply with policy reporting requirements under Scottsdale's claims made and reported policy, a condition precedent to coverage (see Great Canal Realty Corp. v. Seneca Ins. Co. Inc., 5 N.Y.3d 742, 743, 800 N.Y.S.2d 521, 833 N.E.2d 1196 [2005] ).
Although the law firm letter may not have constituted a claim, occurrence, or medical incident under the Mt. Hawley policy, the letter, with the threat of a legal proceeding relating to the care that WMOP had provided to the decedent, concerned "facts, matters, [or] events" that were not disclosed, but for which WMOP now demands coverage from Mt. Hawley. Guided by the plain language of the Mt. Hawley policy (see Westchester Fire Ins. Co. v Schorsch, 186 A.D.3d 132, 140, 129 N.Y.S.3d 67 [1st Dept. 2020] ), the "Prior Acts" exclusion of the Mt. Hawley policy was triggered. The cases relied upon by the motion court and WMOP are inapposite, as they involve the "Prior Knowledge" exclusion, as opposed to the exclusion at issue in this appeal (see e.g. Executive Risk Indem. Inc. v. Pepper Hamilton LLP, 13 N.Y.3d 313, 322, 891 N.Y.S.2d 1, 919 N.E.2d 172 [2009] ; Rosenbaum v. Chicago Ins. Co., 306 A.D.2d 29, 30, 761 N.Y.S.2d 637 [1st Dept. 2003] ).