This matter comes before the Court on the motion of third-party plaintiff City of Johnstown ("City") made by Order to Show Cause dated December 8, 2006, seeking reargument of three motions which resulted in a Decision and Order of this Court entered on December 7, 2006. Those motions were: (1) Plaintiff's motion for partial summary judgment on the issue of liability, (2) the City's motion seeking summary judgment on its claim for common-law indemnification against third-party defendant Peter Luizzi & Brothers Contracting, Inc. ("Luizzi") and (3) Luizzi's cross-motion seeking dismissal of the Third-Party Complaint. By Order entered December 12, 2006, the Court granted the City's motion for re-argument and amended the December 7 Decision and Order to deny Plaintiff's motion for partial summary judgment. The Court reserved decision on both motions relating to the third-party proceeding. Trial ensued, with the parties reaching an agreement after approximately two days of proof. Under a stipulation placed upon the record on December 14, 2006, the third-party proceeding was separated from the main proceeding. The pending motions by the City and Luizzi are taken up here upon reargument.

On reargument, both the City and Luizzi focus on whether the antisubrogation rule affects the City's claim for indemnification from Luizzi. As discussed in the December 7 Decision and Order, Luizzi purchased four insurance policies pursuant to its contract with the City for a paving project: a Commercial General Liability Policy, a Commercial Auto Policy, a Commercial Umbrella Liability Policy and an Owners and Contractors Protective Liability Policy. The City is as an additional insured on the first three policies and is the named insured on the fourth policy. Both parties acknowledge that the equitable doctrine of subrogation allows an insurer to "stand in the shoes" of its insured and pursue a claim against a wrongdoer who has caused a loss for which the insurer is bound to pay. However, an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered (See, e.g., North Star Reinsurance Corp. v. Continental Ins. Co., 82 NY2d 281, 294-96).

In the December 7 Decision and Order, the Court held that Luizzi is covered under three of the four insurance policies for the very risk at issue here; i.e., Plaintiff's injury. The Third-Party Complaint was partially dismissed to the extent that any damages awarded to Plaintiff were payable from proceeds of the three policies under which Luizzi was insured for that risk. The City was granted summary partial judgment awarding indemnification from Luizzi to the extent that Plaintiff's damages exceeded coverage under those three policies. On re-argument, the City asserts that the Court overlooked or misapprehended exclusionary language in the three policies found to cover Luizzi. Luizzi contends that the Court was correct in its ruling as to those three policies, but argues [*2]that the Court overlooked or misapprehended legal authority which provides coverage to Luizzi under the fourth policy. The coverage under the various policies must be re-examined in light of these arguments and the parties' respective motions then assessed.

Commercial General Liability. The Commercial General Liability ("CGL") Policy contains two exclusions asserted as applicable by the City in opposition to Luizzi's original motion. These exclusions state that the CGL Policy does not provide coverage for: (1) bodily injury to an employee of the insured arising from his employment or (2) bodily injury arising from the ownership or use of any "aircraft, auto or watercraft." As noted the December 7 Decision and Order, the policy definition of "auto" includes a dump truck. The City argued that Plaintiff was an employee of Luizzi whose injuries arose from his employment and also that Plaintiff's injuries arose from Luizzi's use of a dump truck, so that both exceptions applied to exclude coverage for Luizzi. Luizzi relied on the "insured contract" exception to these exclusions to show that coverage existed and thereby invoke the antisubrogation rule. The Court held that the insured contract exception applied.

On this reargument motion, the City points out a key distinction between the insured contract exception to the "Employer's Liability" exclusion and the insured contract exception to the "Aircraft, Auto or Watercraft" exclusion. The latter exception reads, in relevant part, as follows:

Liability assumed under any "insured contract" for the ownership, maintenance or use of aircraft or watercraft ....

Commercial Auto. The Commercial Auto Policy also contains an Employer's Liability exclusion with an insured contract exception, on which the Court relied in the December 7 Decision and Order. On reargument, the City argues that the Court overlooked or misapprehended a separate and distinct exclusion which the City argues is applicable here. The "Fellow Employee" exclusion excludes coverage for:

"Bodily injury" to any fellow "employee" of the "insured" arising out of and in the course of the fellow "employee's" employment or while performing duties related to the conduct of your business.

However, this exclusion only applies if the fellow "employee" is entitled to benefits under any of the following: workers' compensation, unemployment compensation or disability benefits law, or any similar law.

In response to the City's reargument motion, Luizzi argues that the Fellow Employee exclusion contradicts the Employer's Liability exclusion and notes that the term "fellow employee" is not defined in the policy to alleviate that contradiction in terms. Luizzi argues that this contradiction creates an ambiguity in the policy which must be construed against the insurer, citing Monteleone v. Crow Constr. Co. (242 AD2d 135). This argument is unavailing for two reasons.

First, as noted at several points in all of the policies at issue, words or phrases in quotation marks are given certain definitions in the policies. The word "employee" is used in quotation marks in the Commercial Auto Policy, but the phrase "fellow employee" is not. While Luizzi has not supplied a complete copy of the Commercial Auto Policy with its motion papers, it has supplied relevant portions, including the definition of the words "insured" and "employee." The word "insured" is defined in the Business Auto Coverage Form, Section II, paragraph 1, as follows:

a. You for any covered "auto."

b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except: [the listed exceptions are inapplicable here].

"Employee" includes a "leased worker". "Employee" does not include a "temporary worker".

Second, even assuming that an apparent contradiction exists between the Employer's Liability and Fellow Employee exclusions does not create an ambiguity to be construed against the insurer if each exclusion is internally unambiguous. As noted in the Monteleone opinion, which was cited in Maroney v. New York Cent. Mut Fire Ins. Co. (supra, at 471):

Even where one exclusion may at first appear to contradict another, or create an ambiguity, "[e]xclusions in policies of insurance must be read seriatim, not cumulatively, and if any one exclusion applies there can be no coverage since no one exclusion can be regarded as inconsistent with another [citation omitted]."

In opposition to Plaintiff's original motion for partial summary judgment establishing the City's liability, the City made two main arguments. First, in order to negate Plaintiff's claim of a violation of 12 NYCRR §23-9.7(d), the City asserted the existence of a fact question as to whether Plaintiff was actually "working" at the time of the accident. Second, the City asserted factual questions as to whether Plaintiff's actions constituted contributory negligence. On reargument, the City reasserted those arguments, pointing to deposition testimony by Plaintiff's co-workers for the proposition that none of those witnesses are clear as to why Plaintiff was behind the dump truck or [*4]precisely what Plaintiff was doing at the time of the accident. In the December 12 Order, the Court acknowledged, upon further review, that there were questions of fact as to Plaintiff's contributory negligence and denied Plaintiff's summary judgment motion. However, Plaintiffs actions do not create an issue of fact insofar as application of the Fellow Employee exclusion is concerned.

The deposition testimony cited by the City shows some puzzlement on the part of Plaintiff's co-workers as to what Plaintiff was doing when his was struck by the dump truck (e.g., one witness testified that it appeared as if Plaintiff may have been tying his shoe). For purposes of the Fellow Employee exclusion, however, the record establishes that he was "working" at the time of the accident. The phrase "course of employment" is interpreted more broadly in the context of insurance policy provisions such as the Fellow Employee exclusion than it is in determining whether a worker qualifies for benefits under the Workers' Compensation Law (See, White Plains City School Dist. Bd. of Educ. v. Merchants Mut. Ins. Co., 225 AD2d 541). The record here shows that Plaintiff reported for work on the day of his injury and, while he appears to have been in the process of disputing the particular assignment he was given, he was on the job at the time of the accident. Plaintiff's injuries thus arose in the course of his employment, so that the Fellow Employee exclusion applies to preclude coverage for Luizzi under the Commercial Auto Policy.

Commercial Umbrella Liability Policy. Both parties acknowledge that, as applied to the facts here, the Umbrella Policy essentially "piggy-backs" the CGL and Commercial Auto policies to extend the monetary limits of the coverage provided by those policies. Coverage is not available under the Umbrella Policy until the limits of those policies have been reached. Since there is no coverage for Luizzi under the CGL or Commercial Auto policies, there is, ipso facto, no coverage for Luizzi under the Umbrella Policy.

Owners and Contractors Protective Liability Policy. In its response to the City's reargument motion, Luizzi makes its own argument that the Court overlooked or misapprehended the law. Specifically, Luizzi takes issue with the Court's prior holding where OCP Policy is concerned. In the December 7 Decision and Order, the Court held that since the City is the only insured under the OCP Policy, there is no coverage for Luizzi and the antisubrogation rule does not apply. On reargument, Luizzi urges a re-reading of the Court of Appeals opinion in North Star Reinsurance Corp. v. Continental Ins. Co. (supra).

Luizzi asserts that the North Star holding dictates precisely that the anti-subrogation rule applies to OCP Policy, even though the City is the only named insured, because Luizzi purchased all four policies at the same time for the same job. According to Luizzi, the policies therefore "were purchased together as coverage against the same risk and paid for by the same party ... [and] are integrally related and indistinguishable from a single policy in any relevant way" (Id., at 295). This Court acknowledges the public policy reasoning of the North Star opinion. Before application of the antisubrogation rule to the OCP Policy can be considered under North Star analysis, however, coverage for Luizzi must be found under at least one of the other policies purchased by Luizzi. The discussion above shows that where Luizzi is concerned, neither the CGL Policy, the Commercial Auto Policy nor the Umbrella Policy provide the same coverage as the OCP Policy.

On its summary judgment motion, the City has the initial burden of making a prima facie showing of its entitlement to judgement, as a matter of law, by submitting sufficient evidence to show that no material issues of fact exist. (Alvarez v. Prospect Hospital, 68 NY2d 320). As [*5]discussed in the December 7 Decision and Order, the City established a prima facie case for its entitlement to common-law indemnification from Luizzi. In opposition, however, Luizzi raised the antisubrogation rule, which the Court held to be at least partially applicable. The discussion above shows that, reviewing the question on reargument, there is no coverage for Luizzi under any of the policies at issue where Plaintiff's injury is concerned. The antisubrogation rule therefore does not come into play and the City is entitled to summary judgment on the Third-Party Complaint. Luizzi's motion to dismiss the Third-Party Complaint must be denied.

Therefore, it is hereby

ORDERED, that upon reargument, the motion of defendant/third-party plaintiff City of Johnstown, NY seeking summary judgment on its third-party claim for common-law indemnification from third-party defendant Peter Luizzi & Brothers Contracting, Inc. is GRANTED; and it is further

ORDERED, that upon reargument, the motion by third-party defendant Peter Luizzi & Brothers Contracting, Inc. seeking dismissal of the Third-Party Complaint is DENIED.

THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT.

THE ATTORNEY FOR THIRD-PARTY PLAINTIFF SHALL ENTER THIS ORIGINAL DECISION/ORDER AND PROVIDE A COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO SE LITIGANT(S), AS THE CASE MAY BE.

Dated:

ENTER.

____________________________________

Richard C. Giardino

Acting Supreme Court Justice