Roosevelt

MEMORANDUM

SUPREME COURT : QUEENS COUNTY
CIVIL TERM IAS PART 3
-----------------------------------
ROOSEVELT PARKING & MAINTENANCE                  X BY: Justice John A. Milano
CO., INC.,                     :
                         :           Index No.: 26384/98
                         Plaintiff,             :
                                                              :                              Motion Date: June 1, 1999
                  - against -                 :
                        :                         Motion Cal. No.: 25
UNITED STATES LIABILITY      :
INSURANCE COMPANY,           :
                                                    :
                                    Defendant.          :
                                                                  X
-----------------------------------

Plaintiff Roosevelt Parking & Maintenance Co., Inc. has moved for summary judgment. Defendant United States Liability Insurance Company has cross-moved for summary judgment.

Plaintiff Roosevelt operates a municipal garage pursuant to a management agreement with The City of New York. The management agreement required plaintiff Roosevelt to obtain a commercial general liability policy which named The City of New York as an additional insured. Plaintiff Roosevelt obtained such a policy from the defendant insurer. The policy provides in relevant part: "Section 1 - Coverages[:] Coverage A. Bodily Injury and Property Damage Liability * * *. 2. Exclusions[:] This insurance does not apply to: * * * e. 'Bodily injury' to (1) An employee of the insured arising out of and in the course of employment by the insured; * * * This exclusion applies: (1) Whether the insured may be liable as an employer or in any other capacity * * *. This exclusion does not apply to liability assumed by the insured under an 'insured contract.'" An endorsement to the policy captioned "Contractual Liability Limitation" provides in relevant part: "The definition of 'insured contract' in the definitions section is replaced by the following: 'Insured contract' means any written 1. Lease of premises; 2. Easement agreement * * * 3. Indemnification of a municipality as required by ordinance, except in connection with work for the municipality; 4. Sidetrack agreement * * * 5. Elevator maintenance agreement * * *."

On June 7, 1994, Victor Dass, an employee of plaintiff Roosevelt, allegedly sustained personal injury during the course of his employment. On or about October 14, 1994, he began a personal injury action against The City of New York (Dass v City of New York, Queens Index No. 21611/94), and on or about August 18, 1995, the City impleaded Roosevelt. On October 13, 1995, Roosevelt notified the defendant insurer of the third-party action, but by letter dated December 8, 1995, the insurer disclaimed coverage. By decision and order (one paper) dated March 29, 1997, Mr. Justice Weiss granted The City of New York summary judgment against Roosevelt on the former's claim for contractual and common law indemnification. On or about December 2, 1998, Roosevelt began this action for a judgment declaring its rights under the insurance policy issued by the defendant.

"An insurer's duty to defend is a very broad one * * * and an insurer denying a duty to defend has the burden to establish as a matter of law on a summary judgment motion that the circumstances complained of fall 'outside the coverage of the policy or that claims against the insured are unambiguously exempted from coverage' * * *." (Sea Crest Const. Corp. v Centennial Ins. Co., 175 AD2d 453, 454, quoting Munzer v St. Paul Fire & Mar. Ins. Co., 145 AD2d 193, 198; Curtis v Nutmeg Ins. Co., 204 AD2d 833.) In the case at bar, the defendant insurer successfully carried its burden. The policy exclusion for "an employee of the insured" applies to coverage of the city as an additional insured. (See, Consolidated Edison Co. of New York, Inc. v United Coastal Ins. Co., 216 AD2d 137; Tardy v Morgan Guar. Trust Co. of New York, 213 AD2d 296.) Moreover, the exclusion relied upon by the defendant insurer is unambiguous, since the management agreement entered into by the plaintiff clearly does not fall within the definition of an "insured contract." The unambiguous provisions of an insurance policy must be given their plain and ordinary meaning (Sanabria v American Home Assur. Co., 68 NY2d 866; U.S. Fidelity & Guar. Co. v. Annunziata, 67 NY2d 229), and, contrary to the plaintiff's contention, there is no ambiguity in the exclusion relied upon by the defendant insurer.

Accordingly, the plaintiff's motion is denied, and the defendant's cross motion is granted. The court declares that the defendant insurer has no duty to defend and indemnify the plaintiff in the underlying personal injury action.

Settle order making the appropriate declarations.

Dated: ______________________________ Justice
John A. Milano