Allstate Insurance Company v. D'Arienzo et al

Filing 39

MEMORANDUM AND ORDER: For the reasons set forth above, Allstate's motion for judgment on the pleadings is granted with respect to the third cause of action and denied with respect to the first, second and fourth causes of action. This matter is recommitted to Chief Magistrate Judge Pollak for pre-trial supervision, including settlement discussions, as appropriate. Ordered by Judge Roslynn R. Mauskopf on 3/30/2021. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALLSTATE INSURANCE COMPANY,
Plaintiff,
- against STEVEN D’ARIENZO, DONNA D’ARIENZO,
TAYLOR D’ARIENZO, GREGORIO PARADES,
LINA A. FERNANDES and ROBERT McGREGOR,

MEMORANDUM AND
ORDER
19-CV-3319 (RRM) (CLP)

Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Allstate Insurance Company (“Allstate”) brings this action against two of its
insureds, Steven D’Arienzo and Donna D’Arienzo (collectively, “the D’Arienzos”); the
D’Arienzos’ daughter, Taylor D’Arienzo (“Taylor”); Robert McGregor, who owned the car
Taylor was driving at the time of the accident at issue; Gergorio Parades, the owner and operator
of the other vehicle involved in the accident; and his wife, Lina A. Fernandes, principally
seeking a declaration that Taylor D’Arienzo is not covered under the insurance policy held by
the D’Arienzos. Allstate now moves for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c). For the reasons stated below, Allstate’s motion is granted in part and denied in part.
BACKGROUND
The following facts are drawn from the pleadings.
On or about January 8, 2019, Taylor was involved in a motor vehicle accident while
driving a vehicle owned by Robert McGregor, and involving a vehicle owned and operated by
Gregorio Parades. (Amended Complaint (“AC”) (Doc. No. 12) ¶ 11.) Taylor was subsequently
arrested for leaving the scene of an accident as well as other criminal offenses. (Id. ¶ 12.)

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In late 2016, Gregorio Parades and Lina Fernandes filed a lawsuit against Taylor and
McGregor in the Supreme Court of the State of New York, Suffolk County, alleging that Taylor
and McGregor’s negligent conduct leading to the accident caused Parades serious physical
injury. (Id. ¶¶ 16–20.) The complaint also alleges that Parades and Fernandes are entitled to
punitive damages against Taylor because she acted recklessly and with conscious disregard and
indifference to the life and safety of others. (Id. ¶ 21.) Finally, the complaint alleges that as a
result of the injuries Parades suffered, his wife has been deprived of his services and society. (Id.
¶ 22.)
Allstate is an insurance company organized and existing under the laws of the State of
Illinois and authorized to issue policies within the State of New York. (Id. ¶ 2.) Allstate issued
two polices to the D’Arienzos, an Auto Policy and a Personal Umbrella Policy (“PUP”), both of
which were in force at all times mentioned herein. (Id. ¶¶ 24–25, 27–28.) Taylor is not named
as an insured on the Declarations Page of the Auto Policy provided to the D’Arienzos. (Id. ¶ 36.)
However, the Auto Policy does name Taylor as one of the “listed drivers on your policy.” (Am.
Compl. Exhibit B (“AC Exhibit B”) (Doc No. 12-3)at 5–10, 12.) 1 Additionally, the Auto
Policy’s “Coverage detail for 2004 Honda Odyssey,” one of the D’Arienzos’ three insured
vehicles, specifies that the “rating information” for that vehicle is based on the vehicle being
driven “over 7,500 miles per year, 0-3 miles to work/school, unmarried female age 30, good
driver rate.” (Id. at 14.) Taylor is not named as an insured on the Declarations Page of the PUP
provided to the D’Arienzos. (AC ¶ 47.)
The Auto Policy contains the following pertinent language:
We will pay for all damages an insured person is legally obligated to pay
because of bodily injury or property damage, meaning:
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All page numbers correspond to ECF pagination.

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(1) bodily injury, sickness, disease or death to any person, including loss of
services; and
(2) damage to or destruction of property, including loss of use.
Under these coverages, your policy protects an insured person from claims for
accidents arising out of the ownership, maintenance or use, loading or
unloaded of an insured auto.
We will not pay any punitive or exemplary damages, fines or penalties under
Bodily Injury Liability Coverage or Property Damage Liability Coverage.
We will defend an insured person sued as the result of an auto accident, even
if the suit is groundless or false. We will choose the counsel. We may settle
any claim or suit if we believe it is proper. We will not defend an insured
person sued for damages which are not covered by this policy.
Insured Persons
(1) While using your insured auto:
(a) you,
(b) any resident, and
(c) any other person using it with your permission.
(2) While using a non-owned auto:
(a) you,
(b) any resident relative using a four-wheel private passenger auto or
utility auto.
[...]
Insured Autos
(1) Any auto described in the Policy Declarations. This includes the fourwheel private passenger auto or utility auto you replace it with.
[…]
(4) A non-owned auto used by you or a resident relative with the owner’s
permission. This auto must not be available or furnished for the regular
use of an insured person.
Definitions
(3) “Bodily injury” – means physical harm to the body, sickness, disease, or
death.
Id. ¶ 26; see AC Exhibit B.)
The PUP contains the following pertinent language:
Definitions Used in This Policy
1. “You” and “your” means the person named on the Policy Declarations as
the insured [and] that person’s resident spouse.
[…]
3. “Bodily injury” means:
a) physical harm to the body, including sickness, disease, disability or
death resulting from physical harm to the body;
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b) shock, mental anguish or mental injury.
[…]
6. “Insured person” means:
a) You, and any other person who is named on the Policy Declarations;
b) any person related to you by blood, marriage or adoption who is a
resident of your household; or
c) any dependent person in your care, if that person is a resident of your
household;
but such residents are not insured person(s) as to the ownership,
maintenance or use of a motor vehicle, aircraft, or watercraft owned by
such resident(s).
7. “Occurrence” means an accident during the policy period, including
continued and repeated exposure to substantially the same general
harmful conditions during the policy period, resulting in bodily injury,
personal injury or property damage.
Excess Liability Insurance – Coverage XL
Allstate will pay damages which an insured person becomes legally obligated
to pay because of personal injury, bodily injury, or property damage, subject
to the terms, conditions and limits of this policy. Personal injury, bodily injury
and property damage must arise from a covered occurrence. We will not pay
any punitive or exemplary damages. Fines and penalties imposed by law are
not included.
(AC ¶ 29; see also AC Exhibit C (Doc No 12-4).)
At the time of the accident, Taylor did not reside with the D’Arienzos. (AC ¶ 13.)
According to the D’Arienzos, Taylor has not resided with them or visited their home since
March or early April of 2018, (id. ¶¶ 34–35), and at all times relevant to the instant matter,
Taylor was living with friends in various hotels, (id. ¶ 33). In their Answer, Parades and
Fernandes deny that these assertions are true. (Answer to Amended Complaint (“Answer”) (Doc
No. 12) ¶¶ 11, 15.) Allstate also asserts in the Amended Complaint that the vehicle Taylor was
driving at the time of the accident was not an “insured auto,” (AC ¶ 40), an assertion that Parades
and Fernandes also deny, (Answer ¶ 11).
Allstate brings four causes of action in the Amended Complaint. First, Allstate requests
an Order from this Court declaring that because Taylor is not a resident of the D’Arienzo

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household, is not named as an insured, and was not driving an insured auto, that under and
pursuant to the terms of the Auto Policy Allstate does not have an obligation to provide coverage
for the liability incurred by Taylor in the underlying accident. (Id. ¶¶ 30–44.) Second, Allstate
requests an Order from this Court declaring that Taylor is not an insured person under the PUP,
and therefore, pursuant to the terms of the PUP, Allstate does not have an obligation to provide
coverage. (Id. ¶¶ 45–52.) Third, Allstate seeks a declaratory judgment finding that Allstate does
not have an obligation to provide coverage to Taylor for any punitive damages that may be
awarded against her. (Id. ¶¶ 53–57.) Fourth, and finally, Allstate requests that this Court find
that Allstate does not have an obligation to provide coverage to Taylor for her liability with
respect to Fernandes’s loss of services and society caused by Parades’s injuries.
The Instant Motion
Allstate now moves for judgment on the pleadings pursuant to Rule 12(c). Allstate first
asserts that it heavily relied upon the information contained in two affidavits, the Affidavits of
Donna D’Arienzo (Doc. No. 32-12) and Steven D’Arienzo (Doc. No. 32-11), in drafting the
pleadings, and so argues that these two pieces of extrinsic evidence can be considered by the
Court without converting the instant motion into one for summary judgment. (Memorandum in
Support of Motion for Judgment on the Pleadings (“Mem.”) (Doc. No. 32-1) at 14–16). The
D’Arienzos represent in these affidavits that they forced Taylor to move out of their home,
changed the locks when she moved out, and retain custody of Taylor’s son, Blake, whom Taylor
has not visited since her departure from the D’Arienzo home. (Affidavit of Donna D’Arienzo ¶¶
11–18; Affidavit of Steven D’Arienzo ¶¶ 11–18.) Further, the D’Arienzos did not consider
Taylor to be a resident of their home and did not intend that she be covered under either the Auto

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Policy or the PUP. (Affidavit of Donna D’Arienzo ¶¶ 20–24; Affidavit of Steven D’Arienzo ¶¶
20–24.)
Next, Allstate argues that New York law applies to the instant action, which places the
burden on the putative insured to establish coverage in coverage dispute issues. (Mem. at 16–
18.) Further, Allstate asserts that Taylor is not a resident as defined by the Auto Policy, as
demonstrated by the Affidavits. (Id. at 18–23.) Allstate also argues that because she is not
named in the policy or a resident at her parent’s home, Taylor is not an insured person under the
meaning of the PUP. (Id. at 23–24.) Further, the vehicle involved was not an insured auto under
the Auto Policy. (Id. at 24–26.) Moreover, Allstate argues that it is not liable for Fernandes’s
loss of services claim, because it is a derivative claim from a personal injury claim and does not
qualify as a covered claim under the Auto Policy and New York Law. (Id. at 26–27.) Finally,
Allstate asserts that it is not liable for Fernandes’s claim for punitive damages because New
York law forbids insurance coverage for punitive damages as against public policy. (Id. at 27–
28.)
In response, defendants Parades and Fernandes first argue that Allstate cannot rely on the
Affidavits in the instant motion, because they were not appended to the Amended Complaint or
integral to it, and because Allstate provided no notice that the Affidavits existed prior to their
submission with the instant motion. (Memorandum of Law in Opposition to Plaintiff’s Motion
(“Opp.”) (Doc. No. 33) at 6–8; 16–18.) Next, Parades and Fernandes argue that Taylor was
covered by the Auto Policy because she was a “listed driver” of one of the insured vehicles under
the policy, (id. at 9–10, 20–21), and because there is no evidence that Taylor’s absence was more
than transient or that she had “knowingly desired or intended to abandon” her parents’ home, (id.

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at 22–24). Finally, Parades and Fernandes argue that the Auto Policy specifically states that it
provides coverage for Fernandes’s loss of services claim. (Id. at 19–20.)
In reply, Allstate points to Exhibit K, (Doc. No. 34–1), which provides a line-by-line
comparison for the Amended Complaint and the information contained in the Affidavits, to
demonstrate that Allstate relied extensively on the Affidavits in drafting the Amended
Complaint. (Reply in Support of Rule 12(c) Motion (“Reply”) (Doc. No. 34) at 3–5.) Allstate
also argues that being a “listed driver” on the Auto Policy is not the same as being an “insured
person,” and does not entitle Taylor to coverage. (Id. at 5–8.) Further, because Taylor did not
reside with the D’Arienzos, she was not an insured person under the Auto Policy. (Id. at 9–10.)
Moreover, the vehicle Taylor was driving during the accident was not an insured auto under the
policy, further indicating that no coverage is available. (Id. at 10–11.)
In an unsolicited sur-reply, Parades and Fernandes append a recent decision in People v.
Barowitz, 2021 NY Slip Op 30798(U) (Sup. Ct.), denying an insurance company a declaratory
judgment that it was not obligated to provide coverage for a “named driver” who was not a
resident of the policyholder’s household. (Sur-Reply (Doc. No. 36).) Parades and Fernandes
also append two additional cases, Matter of Liberty Mut. Ins. Co. v. Interboro Mut. Ins. Co.,
2019 NY Slip Op 32501(U) (Sup. Ct.), and Kennedy v. Valley Forge Ins. Co., 203 A.D. 2d 930
(N.Y. App. Div.), aff’d without opinion in 84 N.Y.2d 963 (1994), to demonstrate that listing an
individual as a “named driver” or “operator” without defining this term in the policy has been
found to create an ambiguity in coverage that is to be construed in favor of the insured and
against the insurer. (Id.)
Allstate argues in its response to the sur-reply that Barowitz addresses first-party
coverage under an uninsured motorist endorsement in a Travelers Insurance Company policy,

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which is entirely different from the third-party liability at issue here. (Response to Sur-Reply
(Doc. No. 37) at 1.) Additionally, Allstate argues that third-party liability coverage is clearly
defined in the Auto Policy and PUP, and limited to the policyholders, their spouses, and any
resident relative, none of which applies to Taylor. (Id. at 1–3.)
In reply, Parades and Fernandes largely stand upon their Sur-Reply, and assert that it was
filed in order to comply with ongoing ethical obligations to supply the Court with recent and
controlling case law on point. (Reply in Support of Sur-Reply (Doc. No. 38).)
STANDARD OF REVIEW
Rule 12(c) states, “After the pleadings are closed—but early enough not to delay trial—a
party may move for judgment on the pleadings.” “In reviewing a motion for judgment on the
pleadings pursuant to Rule 12(c), the Court must accept the non-moving party’s allegations as
true and draw all reasonable inferences in that party’s favor.” Logical Operations, Inc. v.
Comptia, Inc., No. 20-CV-6238 (EAW), 2021 WL 1099619, at *2 (W.D.N.Y. Mar. 23, 2021)
(internal quotations and citations omitted). “Moreover, ‘[w]hen, as in this case, a plaintiff moves
for judgment under Rule 12(c) on claims in [its] own pleading, allegations in that pleading that
have been denied by the non-moving party are generally deemed to be false.’” Id. (quoting
Banker v. Moulton, No. 08-CV-122, 2013 WL 5945800, at *1 (D. Vt. Nov. 6, 2013)).
As with Rule 12(b)(6) motions, Rule 12(c) motions generally are limited to the facts
alleged in the complaint and must be converted into a motion for summary judgment if the court
considers materials outside the pleadings. See Fed. R. Civ. P. 12(d). However, a court may,
without converting the motion into one for summary judgment, consider documents that are
appended to, incorporated by reference in, or integral to the complaint; and it may also consider

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matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002).
DISCUSSION
I.

Applicable Law
The parties agree that this insurance dispute is governed by New York law. Under New

York law, “[w]here the terms of an insurance policy are clear and unambiguous, interpretation of
those terms is a matter of law for the court.” Town of Harrison v. Nat’l Union Fire Ins. Co., 89
N.Y.2d 308, 316 (1996). When resolving disputes about insurance coverage, courts first look to
the language of the policy. See Raymond Corp. v. Nat’l Union Fire Ins. Co., 5 N.Y.3d 157, 162
(2005). Courts should construe policy terms “in a way that affords a fair meaning to all of the
language employed by the parties in the contract and leaves no provision without force and
effect.” Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 N.Y.2d 208, 221–22 (2002).
“However, where the meaning of a policy of insurance is in doubt or is subject to more
than one reasonable interpretation, all ambiguity must be resolved in favor of the policyholder
and against the company which issued the policy.” Boggs v. Commercial Mut. Ins. Co., 220
A.D.2d 973, 974 (N.Y. App. Div. 3rd Dep’t. 1995) (internal quotation marks and citations
omitted). “Where there is ambiguity it is the insurer’s burden to prove that the construction it
advances is not only reasonable, but also that it is the only fair construction of the language,” id.
(citing Tri Town Antlers Found. v Fireman’s Fund Ins. Co., 158 A.D.2d 908, 909 (N.Y. App.
Div. 4th Dep’t.), aff’d, 76 N.Y.2d 841 (1990)), “viewed through the eyes of the ‘average man on
the street,’” Venigalla v. Penn Mut. Ins. Co., 130 A.D.2d 974, 975 (N.Y. App. Div. 4th Dep’t.
1987) (quoting Lachs v Fidelity & Cas. Co., 306 N.Y. 357, 364, rearg. denied, 306 N.Y. 941
(1954)).

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II.

Coverage Under the Auto Policy
Allstate seeks a judgment declaring that because Taylor is not a resident of the D’Arienzo

household, is not named as an insured, and was not driving an insured auto, that under and
pursuant to the terms of the Auto Policy, Allstate does not have an obligation to provide
coverage. (AC ¶¶ 30–44.)
Parades and Fernandes cite three cases to support their argument that Allstate is liable for
injuries resulting from the accident in which Taylor was involved. In Barowitz, the Supreme
Court of New York County found that the listing of a non-resident “named driver” on an
insurance policy, which did not define “named driver” or “driver” or expressly disallow coverage
of “named drivers” under the policy, created an ambiguity that was resolved in favor of the
insured. People v. Barowitz, 2021 NY Slip Op 30798(U), ¶ 4. Similarly, the Appellate Division
found that a “named driver” who was not otherwise listed as an insured person on the policy was
nevertheless entitled to coverage because of the ambiguity created through the use of this
undefined term: “if [the insurers] wished to exclude ‘named driver’ from coverage, they were
required to do so in clear and unmistakable language.” Kennedy v. Valley Forge Ins. Co., 203
A.D.2d at 930. Finally, in Liberty Mutual, the decedent was not an insured person under the
policy but had been named as an “operator,” and the policy carrier had been charged a premium
because of this designation. The Liberty Mutual court determined that a person named as
“operator” under the policy must be found to be entitled to coverage because “if the court were
to accept [the insurer’s] argument, someone named as an operator under the policy would appear
to obtain no benefit from this status, nor would any benefit result from the payment of additional
premiums.” Matter of Liberty Mut. Ins. Co. v. Interboro Mut. Ins. Co., 2019 NY Slip Op
32501(U), ¶ 4.

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Allstate asserts that the language of the policy is clear, and Taylor, as a non-resident of
the D’Arienzo household, does not fall within the category of insured person. However, even
assuming for the sake of argument that Taylor was not a resident of her parents’ home, and
therefore does not qualify as a resident under the Auto Policy, whether she is covered under that
policy remains ambiguous. Taylor is a “listed driver,” a term that is not defined in the Auto
Policy and would seem to suggest, to the average man on the street, some degree of coverage.
Further, information about Taylor’s age, commute, and driving record were factored into the
rating of one of the cars owned by the D’Arienzos. As in Barowitz, Kennedy, and Liberty
Mutual, these facts create an ambiguity in coverage which must, under New York law, be
construed in favor of the insured.
Allstate also argues that even if Taylor is entitled to coverage as an insured person under
the Auto Policy, she was not driving an insured auto at the time of the accident and, therefore,
this accident is not covered. New York courts have upheld denial of coverage where the vehicle
involved was not an insured auto within the relevant policy. See, e.g., Bailey v. Allstate Ins. Co.,
243 A.D.2d 520, 521, 663 (N.Y. App. Div. 2d Dep’t. 1997). Here, the Auto Policy provides that
an insured auto includes “[a] non-owned auto used by you or a resident relative with the owner’s
permission. This auto must not be available or furnished for the regular use of an insured
person.” (AC ¶ 26; AC Exhibit B.) In their Answer, Parades and Fernandes deny Allstate’s
allegation that Taylor was not driving an insured auto at the time of the accident; the Court thus
assumes Allstate’s assertion to be false for the purpose of this Memorandum and Order. From
the pleadings, it is possible to conclude that Taylor was driving McGregor’s car with his
permission, and there is no indication that the vehicle had been made available to her for regular

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use. Drawing all reasonable inferences in favor of the nonmovants, it is possible that Taylor was
driving an insured auto within the meaning of the Auto Policy.
Accordingly, Allstate is not entitled to judgment on the pleadings with respect to the first
cause of action.
III.

Coverage Under the PUP
New York courts have found that “whether a person is a ‘resident’ of an insured’s

‘household’ requires something more than temporary or physical presence and requires at least
some degree of permanence and intention to remain.” Lindner v. Wilkerson, 769 N.Y.S.2d 551,
552 (N.Y. App. Div. 2nd Dep’t. 2003) (collecting cases). However, “where the absence from
home is a temporary one, the courts have declined to require that the person seeking coverage
dwell under the same roof at the time of the accident to be a ‘resident of the household’ or
‘member of the family’ to come within the meaning of some other similar phrase to effect
coverage.” Appleton v. Merchs. Mut. Ins. Co., 16 A.D.2d 361, 365 (N.Y. App. Div. 4th Dep’t.
1962). Courts have found it suggestive of residency where the departure from home was
transient in nature, such as when an individual enlisted in military service. See id. at 364–66.
Allstate’s second cause of action requests a declaratory judgment that Allstate has no
obligation to provide coverage to Taylor under the PUP because Taylor is not an insured person
under that policy. The PUP defines covered individuals, in relevant part, as the policyholder
“and any other person who is named on the Policy Declarations” or “any person related to you
by blood, marriage or adoption who is a resident of your household.” (AC ¶ 29; AC Exhibit C.)
Unlike in the Auto Policy, Taylor’s is not named in the Policy Declarations or anywhere else in
the PUP. Thus, the relevant question is whether Taylor was a resident of her parents’ home at
the time of the accident.

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In their Answer, Parades and Fernandes deny that Taylor was a non-resident of the
D’Arienzo household, or that she had not lived or visited with her parents since 2018. Allstate’s
factual assertions on this point must therefore be assumed to be false for the purposes of the
instant motion. Parades and Fernandes argue that Taylor’s absence from her parents’ home was
transient in nature and caused by her opioid addiction. (Opp. at 22–24.) Taylor resided in
temporary accommodations, such as hotels, and never established a new permanent residence;
her child remained at her parents’ home; and she continued to be listed as a driver on her parents’
Auto Policy. Drawing all reasonable inferences in favor of the nonmovants, one could conclude
that Taylor’s absence from her parents’ home was temporary, and that she remains a resident of
her parents’ home as defined by the PUP and New York law. Therefore, Allstate is not entitled
to judgment on the pleadings with respect to the second cause of action.
IV.

Punitive Damages
In New York, “an insurer may not indemnify an insured for a punitive damages award,

and a policy provision purporting to provide such coverage is unenforceable.” J.P. Morgan Secs.
Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334 (2013). “The rationale underlying this public policy
exception emphasizes that allowing coverage ‘would defeat the purpose of punitive damages,
which is to punish and to deter others from acting similarly.’” Id. at 334–35 (quoting Home Ins.
Co. v American Home Prods. Corp., 75 N.Y.2d 196, 200 (1990)).
Because it is against public policy for an insurance carrier to indemnify an insured for
punitive damages, Allstate has no obligation to defend or indemnify Taylor for any punitive
damages that may be awarded against her.

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V.

Loss of Services
Allstate cites Brustein v. New Amsterdam Cas. Co., 255 N.Y. 137 (1931), to argue that

because Lina Fernandes did not suffer any physical injury herself, she may not bring a claim for
loss of services. However, “the Brustein line of cases stands for the proposition that a policy
which contains a limitation of liability to ‘bodily injuries’ only, does not obligate the insurer to
pay derivative claims for loss of services which occurred because of injuries suffered by a parent
or spouse.” Cty. of Chemung v. Hartford Cas. Ins. Co., 496 N.Y.S.2d 933, 935 (N.Y. Sup. Ct.
1985). Where a policy describes its liability coverage more broadly, then that broader
description will control. See Floyd v. Consol. Indem. & Ins. Co., 237 A.D. 190, 194 (N.Y. App.
Div. 2nd Dep’t. 1932) (Finding an insurance policy covered loss of services claims where the
policy indemnified the insured against “loss, etc., ‘on account of death or bodily injuries,’” and
went “further by reading ‘and including loss arising from the liability and responsibility imposed
by law on the Assured, as owner, for death or injuries to person or property resulting from
negligence in the operation of such motor vehicles….’”). Further, as a matter of law, “there is
included in the term ‘personal injury’ a right to indemnity for loss of services.” Gaouette v.
Aetna Life Ins. Co., 253 A.D. 388, 389 (N.Y. App. Div. 2nd Dep’t. 1938).
The Auto Policy provides, “We will pay for all damages an insured person is legally
obligated to pay because of bodily injury or property damage, meaning: (1) bodily injury,
sickness, disease or death to any person, including loss of services; and (2) damage to or
destruction of property, including loss of use.” (AC ¶ 26; AC Exhibit B.) Where, as here, a
policy includes loss of services within its definition of bodily injury, application of the Brustein
rule would require this Court to ignore the plain language of the contract. As in Floyd, the Court
construes this given definition of bodily injury to mean what it says and indemnify the insured

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against loss of services claims. Additionally, the PUP specifically states that “Allstate will pay
damages which an insured person becomes legally obligated to pay because of personal
injury….” (AC ¶ 29; see also AC Exhibit C.) As a matter of New York law, indemnification for
personal injury includes indemnification for loss of services. Thus, the Auto Policy and PUP
both expressly state that their coverage includes claims for loss of services, and Allstate is not
entitled to judgment with respect to this cause of action.
CONCLUSION
For the reasons set forth above, Allstate’s motion for judgment on the pleadings is
granted with respect to the third cause of action and denied with respect to the first, second and
fourth causes of action. This matter is recommitted to Chief Magistrate Judge Pollak for pre-trial
supervision, including settlement discussion, as appropriate.
SO ORDERED.
Dated: Brooklyn, New York
March 30, 2021

Roslynn R. Mauskopf
_______________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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