James River Insurance Company v. 37 81 Realty Inc. et al

Filing 24

ORDER granting 23 Motion for Default Judgment.James Rivers motion for a default judgment is granted, and a declaratory judgment will be entered accordingly. Ordered by Judge Brian M. Cogan on 1/3/2016. (Cogan, Brian)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
JAMES RIVER INSURANCE COMPANY,
:
:
Plaintiff,
:
: MEMORANDUM DECISION AND
- against : ORDER
:
37 81 REALTY, INC, JIAN LI INC., and QI
: 15 Civ. 4186 (BMC)
CAO,
:
:
Defendants.
:
:
:
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COGAN, District Judge.

Plaintiff James River Insurance Company (“James River”) seeks a declaratory judgment
that it is not obligated to defend its insured in a personal injury action arising out of a
construction accident. Defendants, who are the insured, the injured state court plaintiff, and the
general contractor on the project, have all defaulted. The policy language is clear and,
accordingly, judgment will be entered in plaintiff’s favor.
The facts alleged in the complaint and the state court complaint which is an exhibit to it
are deemed admitted by defendants’ default and are straightforward. James River’s insured is
the property owner, 37 81 Realty, Inc. (“Realty”). Realty hired a general contractor to do work
on the site, defendant Jian Li, Inc. (“JLI”). JLI apparently had an unnamed subcontractor, which
had an employee, defendant Qi Cao. While working on the site, Qi Cao was injured, and sued
Realty and JLI.
Whatever the purpose of this general liability policy was, it does not appear to have
covered injuries sustained by those engaged in construction work on the premises. James River

relies on two exclusions that appear applicable here. The first is the “Construction Activities
Exclusion,” which states that: “This insurance does not apply to ‘bodily injury’ . . . arising out of
or related to any construction, demolition, reconstruction, building, rebuilding, or development
of any kind on the insured premises.” The face of the state court complaint shows that this
precisely describes the incident giving rise to that action. The second exclusion is the
“Independent Contractors and Subcontractors Exclusion.” That provision states: “This insurance
does not apply to ‘bodily injury’ . . . sustained by any of ‘your’ independent
contractors/subcontractors, or any employee . . . of same.” Again, that is precisely what Qi Cao
is suing for in state court.
The plain language of the exclusions therefore appears to support the denial of coverage
for Qi Cao’s claims. If there is any way around that, defendants have waived it by failing to
appear in this action, as I am not about to act as their lawyer. Cf. Greathouse v. JHS Sec. Inc.,
784 F.3d 105, 119 (2d Cir. 2015) (Korman, D.J., dissenting) (“There is something wrong when a
case or controversy, to the extent that it exists, is principally between a plaintiff and the judges
deciding the case.”).
James River’s motion for a default judgment is granted, and a declaratory judgment will
be entered accordingly.

SO ORDERED.

Digitally signed by Brian M.
Cogan
U.S.D.J.

Dated: Brooklyn, New York
January 3, 2016
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