Markel American Insurance Company v. Walters et al

Filing 19

SUMMARY ORDER that MAIC's 8 Motion for Summary Judgment is DENIED. That MAIC's 17 letter motion is DENIED as moot. That the parties notify Magistrate Judge Baxter in order to schedule further proceedings in acordance with this order. Signed by Chief Judge Gary L. Sharpe on 4/2/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
MARKEL AMERICAN INSURANCE
COMPANY,
Plaintiff,

6:11-cv-1347
(GLS/ATB)

v.
DARLENE WALTERS and JOHN
LICHOROWIC,
Defendants.
_________________________________
SUMMARY ORDER
Plaintiff Markel American Insurance Company (MAIC) commenced
this declaratory judgment action seeking to establish that it was entitled to
disclaim coverage under a certain maritime insurance policy because
defendants Darlene Walters and John Lichorowic breached that policy.
(See Compl., Dkt. No. 1.) Pending is MAIC’s motion for summary
judgment. (See Dkt. No. 8.) For the reasons that follow, the motion is
denied.
MAIC contends that the clear and unambiguous terms of the
insurance policy demonstrate that coverage would be suspended during a
certain period of time if defendants’ yacht was not properly “laid up,” i.e., it

was left afloat; thus, it was permissible for MAIC to disclaim coverage for
damage to the yacht that occurred during a time when the policy dictated
that the yacht be laid up. (Dkt. No. 8, Attach. 2 at 4-9.) Defendants
counter that they did not agree to the term in the policy upon which MAIC
relies and that the policy was altered without their knowledge or consent.1
(See Dkt. No. 12; Dkt. No. 12, Attach. 1 at 3-4.) Given the foregoing,
summary judgment is inappropriate at this juncture.2 See Wagner v.
Swarts, No. 1:09-cv-652, 2011 WL 5599571, at 4 (N.D.N.Y. Nov. 17,
2011).
ACCORDINGLY, it is hereby
ORDERED that MAIC’s motion (Dkt. No. 8) is DENIED; and it is
further
ORDERED that MAIC’s letter motion (Dkt. No. 17) is DENIED as

1

It is noted that defendants initially failed to respond to MAIC’s statement of material
facts as required by N.D.N.Y. L.R. 7.1(a)(3). (See Dkt. No. 12.) However, defendants’ failure
is of no moment because it is apparent that summary judgment is not appropriate at this time.
Moreover, MAIC’s request, (see Dkt. Nos. 17, 18), which the court interprets as seeking to
either strike defendants’ second response, (see Dkt. No. 16), or permit a surreply, is denied as
moot.
2

The court is aware of both the parallel state court litigation involving the parties and
their arguments relevant to abstention in light thereof. (See Dkt. No. 7 at 4-7; Dkt. No. 8,
Attach. 2 at 6-7; Dkt. No. 12, Attach. 1 at 2-3.) Because the state court action’s impact upon
the instant federal litigation is unclear at this time, the court declines to stay this action or
dismiss the complaint on that basis.

2

moot; and it is further
ORDERED that the parties notify Magistrate Judge Baxter in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
April 2, 2012
Albany, New York

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