B&A Demolition and Removal, Inc. v. Markel Insurance Company

Filing 30

ORDER denying 6 Motion to Dismiss; denying 21 Motion to Intervene So Ordered that the motion to dismiss the complaint by defendant Markel pursuant to Rule 12(b)(6) is denied; and it is further Ordered that the motion by the Town of Hempstead to intervene is denied. Ordered by Senior Judge Arthur D. Spatt on 8/09/2011. (Padilla, Kristin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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B&A DEMOLITION AND REMOVAL, INC.,
Plaintiff,
-against-

MEMORANDUM OF
DECISION AND ORDER
11-cv-572 (ADS)(ARL)

MARKEL INSURANCE COMPANY,
Defendant.
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APPEARANCES:
Law Office of Brian J. Davis P.C.
Attorneys for the plaintiff
400 Garden City Plaza
Suite 450
Garden City, NY 11530
By:
Brian J. Davis, Esq., of Counsel
Traub Lieberman Straus & Shrewsberry LLP
Attorneys for the defendant
7 Skyline Drive
Hawthorne, NY 10532
By:
Brian Margolies, Esq.
Meryl R. Lieberman, Esq., of Counsel
Bee Ready Fishbein Hatter & Donovan LLP
Attorneys for the proposed intervenor plaintiff Town of Hempstead
170 Old Country Road
Mineola, NY 11501
By:
Joshua Michael Jemal, Esq., of Counsel
SPATT, District Judge.
The plaintiff in this case, B&A Demolition and Removal, Inc. (―B&A‖) seeks a
declaratory judgment against the defendant Markel Insurance Company, LLC
(―Markel‖), affirming that Markel has an obligation to indemnify B&A in a lawsuit
presently pending in New York State Supreme Court. In addition, the Town of

Hempstead seeks to intervene as a plaintiff in this case in support of B&A‘s position.
For the reasons that follow, the Court denies both Markel‘s motion to dismiss and the
Town of Hempstead‘s motion to intervene.
I. BACKGROUND
This derivative action relates to a case commenced on April 13, 2009 in New
York Supreme Court, Nassau County, by Parabit Realty LLC and Parabit Systems Inc.
(collectively, ―Parabit‖) against the Town of Hempstead, B&A, and several other
persons (the ―Parabit Lawsuit‖). Parabit owns a building at 35 Debevoise Avenue in
Roosevelt, New York, and alleges in the Parabit Lawsuit that B&A and the Town of
Hempstead are responsible for having damaged that building during construction of an
adjacent structure.
When the Parabit Lawsuit was filed, B&A held insurance with the presentdefendant Markel that covered the type of claim that Parabit had asserted against B&A.
However, it was not until November 17, 2009, approximately seven months after
Parabit commenced this lawsuit, that B&A notified Markel of the pending claims.
Under the parties‘ insurance contract, B&A‘s notice to Markel of the Parabit Lawsuit
was not timely—although B&A alleges that this delay did not prejudice Markel. On
December 2, 2009, Markel disclaimed liability to B&A under their insurance contract,
based on this delay in providing notice. On December 10, 2010, just over a year later,
B&A commenced the present suit in New York Supreme Court, Nassau County,
seeking to compel Markel to honor its coverage. After removal to this Court, Markel
moved on February 11, 2011 to dismiss B&A‘s complaint pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim.

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B&A bases its lawsuit on a relatively new provision of the New York Insurance
Law, which took effect on January 17, 2009. Prior to that date, an insurer was
permitted to issue contracts that allowed it to deny coverage to an insured based on an
untimely notice of claim—even when the delay did not prejudice the insurer. Under the
new rule, insurance contracts must provide that an insurer may avoid coverage based on
untimely notice only if the insurer is prejudiced by the delay. B&A contends that the
new rule governs the parties‘ insurance contract, and that to deny coverage, Markel
must show that it was prejudiced by B&A‘s late notice. Markel maintains that the old
rule controls, and that the untimeliness of B&A‘s notice is reason enough to disclaim
liability.
Before the Court ruled on Markel‘s motion to dismiss, the Town of Hempstead
moved on May 13, 2011 to intervene as a plaintiff in this action. The Town of
Hempstead is a co-defendant with B&A in the Parabit Lawsuit, and maintains that it
has a contractual right to be indemnified by B&A if Parabit succeeds against the Town
of Hempstead in that underlying lawsuit. The Town of Hempstead further maintains
that B&A was contractually obligated to purchase insurance to protect this
indemnification right, and that a disclaimer from Markel would, in practical terms,
vitiate the Town of Hempstead‘s indemnification rights against B&A. The Town of
Hempstead therefore requests to intervene in this case, or in the alternative, to be
named an amicus curiae in this case. Markel opposes this application by the Town of
Hempstead.

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II. DISCUSSION
A. As to Markel’s Motion to Dismiss
1. Standard on a Motion to Dismiss
Under the now well-established Twombly standard, a complaint should be
dismissed only if it does not contain enough allegations of fact to state a claim for relief
that is ―plausible on its face.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 1974, 167 L. Ed. 2d 929 (2007). The Second Circuit has explained that, after
Twombly, the Court‘s inquiry under Rule 12(b)(6) is guided by two principles. Harris
v. Mills, 572 F.3d 66 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949,
173 L. Ed. 2d 868 (2009)).
―First, although ‗a court must accept as true all of the allegations contained in a
complaint,‘ that ‗tenet‘ ‗is inapplicable to legal conclusions‘ and ‗threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.‘‖ Id. (quoting Iqbal, 129 S. Ct. at 1949). ―‗Second, only a complaint that states
a plausible claim for relief survives a motion to dismiss‘ and ‗[d]etermining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.‘‖
Id. (quoting Iqbal, 129 S. Ct. at 1950). Thus, ―[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and . . . determine whether they
plausibly give rise to an entitlement of relief.‖ Iqbal, 129 S. Ct. at 1950.
2. The Applicability of New York Insurance Law § 3429(a)(5)
As noted above, the primary dispute in this case turns on the applicability of
New York‘s new rule requiring insurers to show prejudice as a prerequisite to

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disclaiming liability based on an untimely notice of claim. That rule is codified at N.Y.
Ins. L. § 3420(a), which provides in pertinent part:
No policy or contract insuring against liability for injury to . . . or
destruction of[] property shall be issued or delivered in this state,
unless it contains in substance the following provisions or provisions
that are equally or more favorable to the insured . . . :
(5) A provision that failure to give any notice required to be
given by such policy within the time prescribed therein shall
not invalidate any claim made by the insured . . . unless the
failure to provide timely notice has prejudiced the insurer . . . .
Significantly, this new rule applies only to insurance policies that were ―issued or
delivered‖ on or after January 17, 2009. See An Act to Amend the Civil Practice Law
and Rules and the Insurance Law, in Relation to Liability Insurance Policies § 8, 2008
N.Y. Sess. Laws 388 (McKinney) (―This act shall take effect on the one hundred
eightieth day after it shall have become a law, and shall apply to policies issued or
delivered in this state on or after such date and to any action maintained under such a
policy . . . .‖); see also Rockland Exposition, Inc. v. Great Am. Assur. Co., 746 F. Supp.
2d 528, 533 n.6 (S.D.N.Y. 2010).
Here, the plaintiff appears to concede that its policy with Markel was issued
prior to January 17, 2009, and that this is not a basis for application of the prejudice
rule. (See Compl., ¶ 4 (―On October 13, 2008, the Defendant Markel bound a
commercial general liability insurance policy on behalf of the Plaintiff‖).) However,
the Court understands B&A‘s complaint to allege that Markel did not deliver the
insurance policy to B&A until February 18, 2009. As the prejudice rule was declared
to apply to ―policies issued or delivered‖ after January 17, 2009, see 2008 N.Y. Sess.
Laws 388 (emphasis added), B&A contends that the new rule applies to this policy

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because, although it was issued before January 17, 2009, the policy was delivered after
that date.
In response, Markel first asserts that the issuance of the insurance policy in
October 2008 was alone sufficient to avoid application of the prejudice rule. (See
Def.‘s Mem. L. in Supp. Mot. to Dismiss at 10 (―Based on the date of the binder alone,
the Policy should be considered ‗issued or delivered‘ prior to January 17, 2009.‖).)
However, this argument merely misreads the relevant rule concerning applicability of
the revised Section 3420(a). Based on the state legislature‘s guidance and the language
of Section 3420(a), the prejudice rule applies to policies that were either issued or
delivered after January 17, 2009. A policy need not be both issued and delivered after
January 17, 2009 for the new rule to apply. Thus, the rule provides that an insurance
contract that is issued before January 17, 2009 but delivered after that date will be
governed by the amended Section 3420(a). Markel cannot therefore rely on the date of
issuance of the policy to show that B&A‘s claim is invalid.
Second, Markel asserts that, in any event, it did deliver the insurance contract to
the plaintiff prior to January 17, 2009. This, of course, contradicts the plaintiff‘s
allegations, and ordinarily would not be a valid basis for supporting a motion to
dismiss. Iqbal, 129 S. Ct. at 1949 (―a court must accept as true all of the allegations
contained in a complaint‖). Nevertheless, Markel maintains that B&A‘s complaint
incorporates by reference an email by which the policy was delivered to B&A on
December 1, 2008, and that the Court may therefore consider that document at this
stage in the case. (See Def.‘s Mem. L. in Supp. of Mot. to Dismiss at 5–6 (citing Blue

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Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369
F.3d 212, 217 (2d Cir. 2004).)
Specifically, Markel points to paragraph 6 of the complaint, which states that:
[Markel‘s insurance agent] alleges to have sent to [B&A‘s insurance
agent] an email to its employee, Mr. Pat Erickson, on December 1,
2008, and Mr. Eriskson has denied receipt of that email, and/or a copy
of the policy that was purportedly attached on December 1, 2008 or
anytime thereafter.
(Compl., ¶ 6.) However, whether or not this paragraph of the complaint incorporates
by reference a December 1, 2008 email to B&A attaching the insurance contract,
Markel does not actually submit such a document. Rather, Markel submits a different
email, purporting to show Markel sending the contract to its own insurance agent on
December 1, 2008. (Aff. Pat Dunstan, Ex. 4.) In addition, Markel also attaches a
computer screen image of a typed log from Markel‘s insurance agent, showing that a
policy was ―emailed to Big pat‖ on December 1, 2008, with an explanation that ―this
log cannot be altered.‖ (Id.)
Neither of these submitted documents were incorporated into the complaint by
reference, and thus the Court may not consider them at this time. See Faulkner v. Beer,
463 F.3d 130, 134 (2d Cir. 2006) (noting that, on a Rule 12(b)(6) motion to dismiss, a
court may only consider documents (1) that are integral to the complaint, (2) about
which there is ―no dispute‖ as to accuracy, and (3) that are obviously relevant).
Moreover, neither document, even if admissible at trial, would be sufficient evidence to
conclusively show that the policy was delivered to B&A before January 17, 2009.
Thus, assuming the truth of the plaintiff‘s complaint, the Court treats the
insurance policy as having been delivered after January 17, 2009. Further, the Court

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finds that, based on this allegation, the amended Section 3420(a) applies to the contract
for purposes of this motion to dismiss. The Court thus concludes that B&A has stated a
valid claim against Markel, and Markel‘s Rule 12(b)(6) motion to dismiss is denied.
B. As to The Town of Hempstead’s Motion to Intervene
In addition, the Town of Hempstead has moved to intervene in this action as a
plaintiff, pursuant to Fed. R. Civ. P. 24(a)(2) and(b)(1)(B), which provide for
compulsory and permissive intervention in federal actions. The Court has reviewed the
parties‘ papers on this motion as well as the relevant law, and finds that intervention is
not appropriate at this time.
For a party to intervene in a case as of right under Rule 24(a)(2), that party must
have an interest in the case that is ―‗direct, substantial, and legally protectable.‘‖.
United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411, 415 (2d Cir. 2001)
(quoting Washington Elec. Coop., Inc. v. Massachusetts Mun. Wholesale Elec. Co.,
922 F.2d 92, 97 (2d Cir. 1990)). According to the Second Circuit, ―[a]n interest that is
remote from the subject matter of the proceeding, or that is contingent upon the
occurrence of a sequence of events before it becomes colorable, will not satisfy the
rule.‖ Washington Elec., 922 F.2d at 97.
Here, the Town of Hempstead has at best a contingent interest in this case. No
judgment has been entered in the Parabit Lawsuit, and barring such a judgment, the
Town of Hempstead has no basis for seeking indemnification from B&A. The Town of
Hempstead‘s interest in this litigation therefore remains inchoate, and contingent upon
the outcome of the Parabit Lawsuit. Intervention is thus improper. See National Fire
Ins. Co. of Hartford v. Starbro Const. Corp., No. 08-cv-3200, 2009 WL 2602281, *5

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(E.D.N.Y. 2009) (―Without an unsatisfied judgment against Defendants, Plaintiff has
no legally protectable interest in litigating the terms of the [Defendants‘ agreements
with their insurance carrier].‖).
The Town of Hempstead opposes this conclusion by noting that it has a
contractual right to have B&A indemnify it from any loss in the Parabit Lawsuit—a
right that the Town of Hempstead characterizes as ―real‖ and ―not contingent or
derivative‖. (Proposed Intervenor‘s Reply at 2.) However, at least for the purposes of
this case, that indemnification right is ―contingent upon the occurrence of a sequence of
events before it becomes colorable,‖ Washington Elec., 922 F.2d at 9. Namely,
indemnification from B&A depends on the entry of a judgment against the Town of
Hempstead in the Parabit Lawsuit, without which the Town of Hempstead has no basis
for such indemnification. The Court therefore finds that the Town of Hempstead does
not have a sufficient interest in this action to support intervention, and denies its motion
to intervene as of right. For similar reasons, the Court also denies the Town of
Hempstead‘s motion for permissive intervention.
Finally, the Town of Hempstead has asked in the alternative to be named an
amicus curiae in this case. With respect to the defendant‘s motion to dismiss, that
request is denied as moot. As for future motions in this case, the Court will entertain a
request from the Town of Hempstead to submit amicus curiae briefing on any such
motion at the time any such motion is filed.

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III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the motion to dismiss the complaint by the defendant Markel
pursuant to Rule 12(b)(6) is denied; and it is further
ORDERED that the motion by the Town of Hempstead to intervene is denied.
SO ORDERED.
Dated: Central Islip, New York
August 9, 2011
__/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge

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