Home Depot U.S.A., Inc. v. Farm Family Casualty Insurance Company
Filing
44
MEMORANDUM & ORDER granting 35 Motion for Summary Judgment; denying 37 Motion for Summary Judgment; Defendant's motion for summary judgment (Docket Entry 35) is GRANTED, and Plaintiff's motion for summary judgment (Docket Entry 37) is DENIED. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 2/11/2016. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
HOME DEPOT U.S.A., INC.,
Plaintiff,
-againstFARM FAMILY CASUALTY INSURANCE
COMPANY,
MEMORANDUM & ORDER
13-CV-0099(JS)(AKT)
Defendant.
---------------------------------X
APPEARANCES
For Plaintiff:
John McCorry, Esq.
McVey & Parsky, LLC
30 N. Lasalle St., Suite 2100
Chicago, IL 60602
William T. Collins, III, Esq.
Simmons, Jannace & DeLuca, LLP
43 Corporate Dr.
Hauppauge, NY 11788
For Defendant:
Dan David Kohane, Esq.
Elizabeth A. Fitzpatrick, Esq.
Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202
SEYBERT, District Judge:
This insurance coverage dispute arises out of a slipand-fall in the parking lot of a Home Depot location in Shirley,
New York (the “Shirley Location”), owned by Plaintiff Home Depot
U.S.A., Inc. (“Home Depot”). Before the incident, J&J Maintenance,
Inc. (“J&J”) entered into a verbal contract with Home Depot to
perform snow removal services in the Shirley Location’s parking
lot.
Home Depot is seeking coverage from J&J’s insurer, Defendant
Farm Family Casualty Insurance Company (“Farm Family”), for claims
asserted against Home Depot based on the slip-and-fall (the “Morris
Action”)1.
(See generally Compl., Docket Entry 1.)
Farm Family moves for summary judgment declaring that it
need not defend Home Depot in the Morris Action.
35.)
(Docket Entry
Home Depot has cross-moved for summary judgment asserting
that Farm Family does have a duty to defend it and must reimburse
Home Depot for defense costs incurred in defending the Morris
Action.
(Docket Entry 37.)
For the following reasons, Farm
Family’s motion is GRANTED, and Home Depot’s motion is DENIED.
BACKGROUND2
I.
Factual Background3
John Morris and his wife sued Home Depot after John Morris
slipped and fell in the Shirley Location’s parking lot. (Def.’s
56.1 Stmt., Docket Entry 35-4, ¶ 3; Pl.’s 56.1 Stmt., Docket
Entry, 37-2, ¶ 3.)
1
The following facts are drawn from the parties’ 56.1
Statements, their affidavits, and other documents filed in
support of the parties’ motions.
2
Before providing a factual background, the Court must address
the deficiencies of Farm Family’s 56.1 Counterstatement. (See
Def.’s 56.1 Counterstmt., Docket Entry 35-13.) In a letter
dated March 18, 2014, Home Depot points out that Farm Family
filed a 56.1 Counterstatement but did not comply with Local
Civil Rule 56.1(d). (See Mar. 18 Ltr., Docket Entry 25.)
Indeed, Farm Family has failed to support its denials “by
citation to evidence which would be admissible . . . as required
by Fed. R. Civ. P. 56(c).” LOCAL CIV. R. 56.1(d). But that
failure “does not absolve [Home Depot] . . . of the burden of
showing that it is entitled to judgment as a matter of law.”
See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).
Thus, the Court may review the record independently and
3
2
A.
The Maintenance Contractor Agreement
In February 2003, Home Depot and J&J entered into a
Maintenance Contractor Agreement (“MCA”), in which J&J agreed to
provide
snow
removal
services
to
five
Home
Depot
locations.
(Def.’s 56.1 Stmt., ¶ 13; see MCA, Def.’s Aff. Ex. C, Docket Entry
35-7, at 1, 9-13.)4
Section 8 of the MCA provided that J&J
“agree[d] to maintain” certain insurance coverage for Home Depot.
(See Def.’s 56.1 Stmt. ¶ 14; MCA at 4.)
Section 8 further provided
that J&J would “provide an Owners and Contractors Protective
Liability Policy in lieu of the additional insured requirement.
This Policy will show Customer as named insured and will remain in
effect until the work is completed and accepted.”
(MCA at 4.)
Critically, when the parties executed the MCA, it did
not include the Shirley Location.
(See generally MCA.)
On this
point, two provisions of the MCA are particularly relevant:
13.0
Changes and Modifications.
The terms and conditions of this Agreement may
not be amended, waived or modified, except in
a writing signed by both parties.
* * *
24.0
Entire Agreement.
disregard any of Farm Family’s assertions that do not have
support by admissible evidence. Id.
For the purposes of this Memorandum and Order, the Court
will use the page numbers generated by the Electronic Case
Filing System when referring to the parties’ exhibits.
4
3
This Agreement, including all Exhibits and any
other
documents
referenced
herein,
constitutes the entire agreement between the
parties with respect to the subject matter
hereof,
and
supersedes
all
other
communications, including but not limited to
all prior agreements, between the parties with
respect to such subject matter.
(MCA at 6-7 (emphasis added).)
B.
The Shirley Location
In January 2004, Home Depot asked J&J to provide a
proposal for snow removal services for Store #1282, the Shirley
Location, which J&J submitted soon after.
(Pl.’s 56.1 Stmt.,
¶¶ 19-20; see Shirley Proposal, Def.’s Aff. Ex. E, Docket Entry
35-9.)
The parties agree that Home Depot verbally acknowledged
the Shirley Proposal and instructed J&J to begin work.
56.1 Stmt. ¶¶ 23, 26; Pl.’s 56.1 Stmt. ¶ 25.)
Proposal
was
signed
only
by
J&J
(Def.’s 56.1 Stmt. ¶¶ 11, 23.)
(Def.’s
In fact, the Shirley
President,
Joseph
Belmonte.
J&J began snow plowing at the
Shirley Location on January 15, 2004--four days before the alleged
slip-and-fall.
C.
(Pl.’s 56.1 Stmt. ¶ 30.)
The Morris Action
In the early morning of January 19, 2004, an individual
named John Morris slipped and fell on “an accumulation of ice,
snow and water” in the Shirley Location’s parking lot.
56.1 Stmt. ¶ 3.)
(Def.’s
At the time, the Shirley Location was under
construction and not yet open to the general public.
4
(Pl.’s 56.1
Stmt. ¶ 5.)
Mr. Morris was a union electrician who worked at the
Shirley Location while it was under construction.
Stmt. ¶ 6.)
(Pl.’s 56.1
According to Mr. Morris, it appeared that the parking
lot had not been plowed when he arrived for work.
Stmt. ¶ 10.)
(Pl.’s 56.1
He also claims that he saw that the parking lot was
sanded at approximately 10 a.m., three hours after he slipped and
fell.
(See Pl.’s 56.1 Stmt. ¶ 12; Def.’s 56.1 Stmt. ¶ 3.)
The Morrises filed suit against Home Depot in Nassau
County Supreme Court.
(Pl.’s 56.1 Stmt. ¶ 3.)
Some time later,
Home Depot filed a third-party complaint against J&J.
(See Tr.
Court Decision, Def.’s Aff. Ex. A, Docket Entry 35-2, at 2.)
D.
Home Depot’s Request for Insurance Coverage
At the time of the slip-and-fall, J&J was insured by
Farm Family.
(Def.’s 56.1 Stmt. ¶ 36; see J&J’s Policy, Def.’s
Aff. Ex. G, Docket Entry 35-11.)
Starting on April 6, 2006, Home
Depot began requesting that Farm Family defend it in the Morris
Action and indemnify Home Depot for any judgment or settlement.
(Def.’s 56.1 Stmt. ¶ 37; see Apr. 6, 2006 Ltr., Pl.’s Aff. Ex. 7,
Docket Entry 38-10.)
request,
arguing
Farm Family repeatedly denied Home Depot’s
that
although
Home
Depot
was
insured, the loss did not arise out of J&J’s work.
an
additional
(See May 10,
2006 Ltr., Pl.’s Aff. Ex. 8, Docket Entry 38-11; Aug. 14, 2006
Ltr., Pl.’s Aff. Ex. 10, Docket Entry 38-13.)
5
Notably, J&J’s Policy does not name Home Depot as an
additional insured. (See generally J&J’s Policy.) But Farm Family
did issue a certificate of insurance to Home Depot indicating its
intention to afford Home Depot coverage as an additional insured.
(See Certificate of Ins., Docket Entry 41-1.)5
II.
Procedural History
A.
Ruling in the Morris Action
In the Morris Action, J&J filed a motion for summary
judgment to dismiss Home Depot’s third-party complaint, and in
August 2014, Judge Thomas F. Whelan granted J&J’s motion.6
Tr. Court Decision at 1-8.)
(See
In doing so, the court reasoned that
even if J&J left “some residual snow or ice on the plowed area,
J&J cannot be said to have created a dangerous condition.”
Court Decision at 8.)
(Tr.
The court also determined that the MCA did
not apply to the Shirley Location because the parties only reached
a verbal agreement and the MCA required a writing signed by both
parties to alter or amend any terms.
(Tr. Court Decision at 9-
10.)
The Court notes that the certificate of insurance includes an
important disclaimer: “THIS CERTIFICATE IS ISSUED AS A MATTER OF
INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED BY THE POLICIES BELOW.” (Certificate of Ins.)
5
Home Depot is appealing this decision.
Entry 37-1, at 6-7.)
6
6
(Pl.’s Br., Docket
B.
Pending Cross-Motions for Summary Judgment
On January 8, 2013, Home Depot filed this lawsuit.
Compl.)
(See
Home Depot seeks an order on three grounds: (1) Farm
Family must defend and indemnify Home Depot in the Morris Action
(Compl. ¶¶ 25-28); (2) Farm Family must reimburse Home Depot for
all costs incurred by Home Depot for its defense of the Morris
Action (Compl. ¶¶ 29-33); and (3) Farm Family is estopped from
disclaiming liability because it failed to deny coverage as soon
as reasonably possible (Compl. ¶¶ 34-41).
Both parties have cross-moved for summary judgment.
(Docket Entries 35, 37.)
Home Depot’s principal argument is that
the duty to defend is broad and that the Morris Action arguably
arose out of J&J’s work.
(Pl.’s Br at 8-13.)
Home Depot asserts
that at minimum, Farm Family owed it a defense in the Morris Action
between April 6, 2006 and August 8, 2014.
(Pl.’s Br. at 12.)
In
response, Farm Family contends that it has no duty to defend
because the MCA did not govern the Shirley Location and, thus,
“J&J was under no obligation to name Home Depot as an additional
insured for the Shirley Store.”
(Def.’s Br., Docket Entry 35-3,
at 9.)
DISCUSSION
I.
Legal Standard
Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the
7
movant is entitled to judgment as a matter of law.”
FED. R. CIV.
P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.
Ed. 2d 265 (1986).
“In assessing the record to determine whether
there is a genuine issue to be tried as to any material fact, the
court
is
required
to
resolve
all
ambiguities
and
draw
all
permissible factual inferences in favor of the party against whom
summary judgment is sought.”
McLee v. Chrysler Corp., 109 F.3d
130, 134 (2d Cir. 1997).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary judgment.”
Id.; see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct.
1598, 1608, 26 L. Ed. 2d 142 (1970).
A genuine factual issue
exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”
106 S. Ct. at 2510.
Anderson, 477 U.S. at 248,
To defeat summary judgment, “the non-movant
must ‘set forth specific facts showing that there is a genuine
issue for trial.’”
Weinstock v. Columbia Univ., 224 F.3d 33, 41
(2d Cir. 2000) (quoting Anderson, 477 U.S. at 256, 106 S. Ct. at
2514).
“[M]ere speculation or conjecture as to the true nature of
the facts” will not overcome a motion for summary judgment. Knight
v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citation
omitted); see also Williams v. Smith, 781 F.2d 319, 323 (2d Cir.
8
1986) (“Mere conclusory allegations or denials will not suffice.”
(citation omitted)); Weinstock, 224 F.3d at 41 (“[U]nsupported
allegations do not create a material issue of fact.”) (citations
omitted).
“The same standard applies where, as here, the parties
filed cross-motions for summary judgment . . . .”
Morales v.
Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001) (citing
Terwilliger v. Terwilliger, 206 F.3d 240, 244 (2d Cir. 2000)).
Thus, even if both parties move for summary judgment and assert
the absence of any genuine issues of material fact, “a district
court is not required to grant judgment as a matter of law for one
side or the other.”
Heublein, Inc. v. United States, 996 F.2d
1455, 1461 (2d Cir. 1993) (citation omitted).
“Rather, each
party’s motion must be examined on its own merits, and in each
case all reasonable inferences must be drawn against the party
whose motion is under consideration.”
Morales, 249 F.3d at 121
(citation omitted).
II.
Farm Family’s Duty to Defend
As an initial matter, “an insurer’s duty to defend
presents a question of law appropriate for resolution by summary
judgment.”
Wausau Underwriters Ins. Co. v. QBE Ins. Corp., 496 F.
Supp. 2d 357, 360 (S.D.N.Y. 2007) (citing Avondale Indus., Inc. v.
Travelers Indem. Co., 887 F.2d 1200, 1204 (2d Cir. 1989)).
Under
New York law, the duty to defend is “‘exceedingly broad.’”
Regal
9
Const. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 15
N.Y.3d 34, 37, 930 N.E.2d 259, 261, 904 N.Y.S.2d 338 (2010)
(quoting BP Air Conditioning Corp. v. One Beacon Ins. Grp., 8
N.Y.3d 708, 714, 871 N.E.2d 1128, 1131, 840 N.Y.S.2d 302 (2007)).
In that regard, an insurer must defend an insured or additional
insured where “the allegations of the complaint ‘suggest . . . a
reasonable
possibility
of
coverage.’”
Euchner-USA,
Inc.
v.
Hartford Cas. Ins. Co., 754 F.3d 136, 141 (2d Cir. 2014) (quoting
Auto. Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 137, 850 N.E.2d
1152, 1155, 818 N.Y.S.2d 176 (2006)) (ellipsis in original); see
also Kassis v. Ohio Cas. Ins. Co., 12 N.Y.3d 595, 599-600, 913
N.E.2d
933,
934,
885
N.Y.S.2d
241
(2009)
(finding
that
an
additional insured “enjoy[s] the same protection as the named
insured”)
(internal
quotation
marks,
citation,
and
emphasis
omitted).
A.
Collateral Estoppel
Farm
estopped
Family
argues
from
asserting
that
coverage
decision in the Morris Action.
Home
based
Depot
on
is
the
collaterally
lower
(Def.’s Br. at 9-10.)
court’s
The Court
disagrees.
The
doctrine
of
collateral
estoppel,
or
issue
preclusion, prevents parties from relitigating a “legal or factual
issue already decided in an earlier proceeding.”
Perez v. Danbury
Hosp., 347 F.3d 419, 426 (2d Cir. 2003) (citing Boguslavsky v.
10
Kaplan, 159 F.3d 715, 719-20 (2d Cir. 1998)).
To find collateral
estoppel, four factors must be met:
(1) the identical issue was raised in a
previous
proceeding;
(2) the
issue
was
actually litigated and decided in the previous
proceeding; (3) the party had a full and fair
opportunity to litigate the issue; and (4) the
resolution of the issue was necessary to
support a valid and final judgment on the
merits.
Grenon v. Taconic Hills Cent. Sch. Dist., No. 05-CV-1109, 2006 WL
3751450, at *6 (N.D.N.Y. Dec. 19, 2006) (internal quotation marks
and citations omitted).
A party that was not a litigant in the
first action may still invoke collateral estoppel “as long as the
person against whom the findings are asserted . . . had a full and
fair opportunity to litigate the identical issue in the prior
action.”
Carino v. Town of Deerfield, 750 F. Supp. 1156, 1170
(N.D.N.Y. 1990) (citation omitted). Under this doctrine, the Court
is obliged to give preclusive effect to the judgments of state
courts.
Kelleran v. Andrijevic, 825 F.2d 692, 694 (2d Cir. 1987)
(“‘Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of
the State from which the judgments emerged would do so . . . .’”)
(quoting Allen v. McCurry, 449 U.S. 90, 95-96, 101 S. Ct. 411,
415-16, 66 L. Ed. 2d 309 (1980) (ellipsis in original)).
Here,
the
identity of issues.
Court
focuses
on
the
first
requirement:
Courts in this Circuit have observed that the
11
issues presented in both actions need not be “‘exactly identical;
it
is
sufficient
that
the
issues
presented
in
[the
earlier
litigation] are substantially the same as those presented by [the
later] action.’”
Cerny v. Rayburn, 972 F. Supp. 2d 308, 316-17
(E.D.N.Y. 2013) (quoting Thomas v. Venditto, 925 F. Supp. 2d 352,
361 (E.D.N.Y. 2013)) (alterations in original).
In other words,
the Court must not render a decision that “would destroy or impair
rights
or
interests
established”
in
the
earlier
litigation.
Sorrentino v. Barr Labs., Inc., 397 F. Supp. 2d 418, 422 (W.D.N.Y.
2005) (internal quotation marks and citation omitted).
The Court finds that the issues in this case and the
Morris Action are not identical.
The question here focuses on
whether Home Depot was an additional insured under Farm Family’s
policy.
The lower court only considered whether the MCA applied
to the Shirley Location.
(Tr. Court Decision at 9-10.)
Although
that analysis plays an important role in this Order, the Court
concludes that the identity of issues requirement has not been met
and, thus, collateral estoppel does not apply.
B.
Non-Coverage
As the party claiming coverage, Home Depot bears the
burden of proof and “is not entitled to coverage if not named as
an insured or an additional insured on the face of the policy.”
Nat’l Abatement Corp. v. Nat’l Union Fire Ins. Co., 33 A.D.3d 570,
570-71, 824 N.Y.S.2d 230, 232 (1st Dep’t 2006) (citations omitted).
12
After a close review of J&J’s insurance policy, the Court observes
that Home Depot is not listed as an additional insured in the
Schedule or anywhere else in the policy.
(See generally J&J’s
Policy.)
Although “[t]he four corners of an insurance agreement”
generally control, Sixty Sutton Corp. v. Illinois Union Ins. Co.,
34 A.D.3d 386, 388, 825 N.Y.S.2d 46, 48 (1st Dep’t 2006) (citation
omitted),
some
New
York
courts
agreement for coverage purposes.
have
reviewed
the
underlying
See, e.g., City of N.Y. v.
Philadelphia Indem. Ins. Co., 25 Misc. 3d 1202(A), 899 N.Y.S.2d 58
(Sup. Ct., Kings Cty., Jan. 22, 2007) (contract); Greater N.Y.
Mut. Ins. Co. v. Mut. Marine Off., Inc., 3 A.D.3d 44, 47, 769
N.Y.S.2d 234, 237 (1st Dep’t 2003) (lease); William Floyd Sch.
Dist. v. Maxner, 68 A.D.3d 982, 985-86, 892 N.Y.S.2d 115, 118 (2d
Dep’t 2009) (subcontract).7
Thus, the Court will examine the MCA
to determine whether Home Depot is an additional insured under
Farm Family’s policy.
In William Floyd, for example, the policy provided that the
additional insured was covered “‘with respect to liability
arising out of [the subcontractor’s] ongoing operations
performed for that additional insured by the named insured at
the location designated in the written contract.” 68 A.D.3d at
985, 892 N.Y.S.2d at 118. The Court notes that Farm Family’s
policy does not reference an underlying contract with Home
Depot. But other facts, including the certificate of insurance,
indicate that Farm Family intended to cover Home Depot in some
capacity. With that, the Court must evaluate the terms of the
MCA to determine if and when Home Depot was an additional
insured under Farm Family’s policy.
7
13
It is well-settled that the interpretation of a contract
is a question of law, including “the threshold question of whether
the terms of the contract are ambiguous.”
Alexander & Alexander
Servs., Inc. v. These Certain Underwriters at Lloyd’s, London,
Eng., 136 F.3d 82, 86 (2d Cir. 1998) (citation omitted).
“Where
the language of the contract is unambiguous, and reasonable persons
could not differ as to its meaning,” summary judgment is proper.
See Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d
Cir. 1985) (collecting cases).
Contract language is unambiguous
when it has “‘a definite and precise meaning . . . concerning which
there is no reasonable basis for a difference of opinion.’”
Hunt
Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d
Cir. 1989) (quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351,
355, 385 N.E.2d 1280, 1282, 413 N.Y.S.2d 352 (1978)). By contrast,
an ambiguity exists when the contract language is “capable of more
than
one
meaning
when
intelligent person.”
viewed
objectively
by
a
reasonably
JA Apparel Corp. v. Abboud, 568 F.3d 390,
396-97 (2d Cir. 2009) (internal quotation marks and citations
omitted).
After
a
careful
review
of
the
MCA,
the
Court
has
determined that Home Depot was not an additional insured for the
Shirley
Location.
agreement,”
required
The
a
effectuate an amendment.
MCA,
which
writing,
constituted
signed
(MCA at 6-7.)
14
by
both
the
“entire
parties,
to
And the parties only
entered into a verbal contract for the Shirley Proposal.
56.1 Stmt. ¶¶ 23, 26; Pl.’s 56.1 Stmt. ¶ 25.)
(Def.’s
Based on the MCA’s
unambiguous language, Home Depot is not entitled to coverage.
Home
Depot’s
argument
that
Farm
Family
should
be
estopped from asserting non-coverage lacks merit. As a preliminary
point,
the
Court
construes
this
argument
as
one
of
waiver.
Equitable estoppel is a doctrine “that limits an insurers’ ability
to delay coverage decisions after undertaking the defense of an
action.”
Com. Union Ins. Co. v. Int’l Flavors & Fragrances, Inc.,
822 F.2d 267, 274 (2d Cir. 1987).
Waiver, on the other hand, is
“an intentional relinquishment of a right.”
Bellefonte Re-Ins.
Co. v. Volkswagenwerk AG, 102 A.D.2d 753, 756, 476 N.Y.S.2d 890,
894
(1st
Dep’t
1984)
(internal
quotation
marks
and
citation
omitted).
Home Depot asserts that Farm Family “mislead Home Depot
into believing that it was an additional insured on J&J’s policy”
because Farm Family stated as much in a letter dated May 10, 2006
and denied coverage on other grounds.
(Pl.’s Reply Br., Docket
Entry 41, at 3; see also May 10, 2006 Ltr. (“We have now determined
that The Home Depot is an additional insured policy.”).)
Although
Farm Family’s statement is inconsistent with the terms of the MCA,
it is “‘settled law that waiver or estoppel may not be invoked to
15
create coverage where none exists under the policy as written.’”8
See Capari v. Hartford Accident & Indem. Co., 69 Misc. 2d 354,
360, 330 N.Y.S.2d 206, 213 (1972) (quoting Simpson v. Phoenix Mut.
Life Ins. Co., 30 A.D.2d 265, 268, 291 N.Y.S.2d 532, 536 (1st Dep’t
1968), aff’d, 24 N.Y.2d 262, 247 N.E.2d 655, 299 N.Y.S.2d 835
(1969)).
As a result, Farm Family is not estopped from asserting
a non-coverage defense.
Home Depot’s next argument--that Farm Family waived its
ability
to
disclaim
coverage
under
New
§ 3420(d)(2)--is likewise without merit.
15.)
York
Insurance
Law
(See Pl.’s Br. at 13-
Generally, an insurer disclaiming liability or denying
coverage for death or bodily injury, as this case here, must give
written notice to the claimant as soon as reasonably possible.
N.Y. INS. LAW § 3420(d)(2) (McKinney 2013).
But a disclaimer is
unnecessary if the policy does not cover the claim at issue.
Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188, 734 N.E.2d
745, 747, 712 N.Y.S.2d 433 (2000). To hold otherwise “would create
coverage where it never existed.”
Id.
Thus, Home Depot cannot
argue that Farm Family waived its non-coverage defense under New
In the context of equitable estoppel, an insurer may waive its
non-coverage defense if it initiates a defense of the insured
and later asserts that the claim is not covered. O’Dowd v. Am.
Sur. Co. of N.Y., 3 N.Y.2d 347, 355, 144 N.E.2d 359, 363, 165
N.Y.S.2d 458 (1957) (citations omitted). But those
circumstances are not present here: Farm Family never
participated in Home Depot’s defense.
8
16
York Insurance Law § 3420(d)(2) because there was no coverage to
begin with.
Nor does the fact that Farm Family issued a certificate
of insurance save Home Depot’s argument.
3-4.)
(See Pl.’s Reply Br. at
When a certificate of insurance states that it is for
informational purposes only, it is “insufficient, by itself, to
show that such insurance has been purchased.”
Trapani v. 10 Arial
Way Assocs., 301 A.D.2d 644, 647, 755 N.Y.S.2d 396, 399 (2d Dep’t
2003) (collecting cases); see also Moleon v. Kreisler Borg Florman
Gen. Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621, 623 (1st
Dep’t
2003)
(finding
that
a
certificate
of
insurance
was
insufficient to establish coverage when it stated that it was
“‘issued as a matter of information only and confers no rights
upon the certificate holder [and that] this certificate does not
amend, extend or alter the coverage afforded by the policies.’”)
(alteration in original).
Put another way, a certificate of
insurance is evidence of intent, not coverage.
Buccini v. 1568
Broadway Assocs., 250 A.D.2d 466, 469-70, 673 N.Y.S.2d 398, 401
(1st Dep’t 1998) (citations omitted).
In this case, Farm Family’s
certificate of insurance contained the following disclaimer: “THIS
CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS
NO RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT
AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
17
BELOW.”
(See Certificate of Ins.)
On that basis, it is clear
that the certificate of insurance did not confer any coverage.
Yet the Court acknowledges that some New York courts
have conferred coverage based on a certificate of insurance.
10
Ellicott Square Ct. Corp. v. Mountain Valley Indem. Co., 634 F.3d
112, 122-23 (2d Cir. 2010) (collecting cases).
As the Ellicott
court observed, the First and Second Departments have rejected
estoppel arguments based on a certificate of insurance, but the
Third
and
Fourth
certificate
was
Departments
issued
by
an
have
found
agent
estoppel
within
the
where
scope
of
“the
its
authority” and “the party seeking coverage reasonably relied on”
it.
See id.
No matter which rule the Court applies, the result
is the same: there is no coverage.
Although the Douglas Immoor
Agency, a provider of Farm Family, issued the certificate of
insurance, Home Depot could not have “reasonably relied on” it
because the MCA did not govern the Shirley Location.
In other
words, Home Depot could not have expected to be covered as an
additional insured for the Shirley Location when the MCA was
limited to five locations, none of which were the Shirley Location.
For the reasons stated above, Farm Family’s motion for
summary judgment is GRANTED, and Home Depot’s motion is DENIED.
18
CONCLUSION
Defendant’s motion for summary judgment (Docket Entry
35) is GRANTED, and Plaintiff’s motion for summary judgment (Docket
Entry 37) is DENIED.
The Clerk of the Court is directed to mark this matter
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
February
11 , 2016
Central Islip, New York
19
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