Jane Street Holding, LLC v. Aspen American Insurance Company

Filing 24

OPINION re: 6 MOTION for Summary Judgment / Plaintiff's Motion for Partial Summary Judgment Against Defendant Aspen American Insurance Company, filed by Jane Street Holding, LLC, 12 CROSS MOTION for Summary Judgment, filed by Aspen Am erican Insurance Company. Given the reasoning above, Defendant's motion for summary judgment regarding Plaintiff's claim for bad faith is granted and the claim is dismissed. Based on the reasoning above, Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary judgment and dismissal is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 12/31/2013) (ja)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x JANE STREET HOLDING, LLC, Plaintiff, 13 Civ. 2291 - against ­ OPINION ASPEN AMERICAN INSURANCE COMPANY, Defendant. ",""","->'_'_ \., , ...-'-'- ----------------------------------------X; \ LS ­ if.' F 1< ~~ .~., - ,;t i ... ,f, I i " AHorne ys for the Plaintiff ! \ 1'"') I & .~'.~~--' -~'''''''---1 n ,'\ ; \ V il\ ~'~J' '.:" ': '~ti.$. - ' . .... APPEARANCES: KASOWITZ, BENSON, TORRES 1633 Broadway New York, NY 10019 By: Burt M. Garson, Esq. Robin L. Cohen, Esq. .. ,..,. 1 ~ ', , '\' ,~ ~ , .. ! . ~ !' ! . , : . '.. , , , , " . FRIEDMAN L~-p::.:~.:: ..... Attorneys for the Defendant MOUND COTTON WOLLAN & GREENGRASS (NYC) One Battery Park P za 9th Floor New York, NY 10004 By: Wayne R. Glaubinger, Esq. Hilary M. Henkind, Esq. . ' . f, ,", l !, .. ,_ _ .< _ _ " , I i ......" ...,• .1 - , , . ' '"':" .-,-.-.-~- ' j Sweet, D.J. Plaintiff "Jane Street") Rules for Civil Defendant "Aspen"). Jane has Street moved pursuant r Procedure Aspen American Jane Street Holding, Rule ("Plaintiff" 56 of the or Federal partial summary judgment against Insurance ("Defendant" Company or s that Aspen breached its insurance 1 policy obligation to pay up to $2.5 million Jane Street incurred to its ct cross-moved pursuant Rule 56(b} to to LLC c for generator. of the flood damage Defendant has Federal Rules for Civil Procedure for summary judgment and to dismiss Plaintiff's complaint ("Complaint"). Based upon the facts and conclusions set forth below, Plaintiff's motion partial summary judgment is Defendant's r denied, and motion summary judgment and dismissal is granted. I. Prior Proceedings This action was initiated by the Pl iff on April 8, 2013 arising out of an insurance policy Jane Street purchased from Aspen and subsequent refusal from Aspen to pay for the loss of Jane Street s generator due to flooding by Hurricane I Sandy on October 29, 2012. Aspen 2 led its answer to Jane Street's complaint on April 26, 2013. Plaintiff filed the instant motion for partial summary judgment on May 9, 2013. scheduling conference. conducted. Aspen 2013. Oral The No depositions cross-moved arguments were motion for held was or summary on filed prior discovery judgment October 9, to have on any been 28, and 2013, May the matter was marked fully submitted on the same day. II. The Facts The facts have been set forth in the Plaintiff's Local Civil Rule 56.1 Statement, Plaintiff's Local Local Civil The Rule 56.1 Rule Counterstatement Statement. Civil to facts the Defendant's Counterstatement to the 56.1 Statement, Statement Defendant's described below and Local are the Defendant's the Pl Civil nti Rule 's 56.1 undisputed except as noted. Jane proprietary company's Street trading, internal is and assets. in the conducts The business global company's of quantitative trades office is with located on the 33rd floor of One New York Plaza in lower Manhattan. 3 the In broker, July Hallahan, 2011, Jane McGuiness Street, & through y's, Ltd., its insurance approached Aspen seeking to place a property and inland marine insurance policy with Aspen. In seeking out insurance, provided an Accord Commercial Jane Street filled out and Insurance Application rm dated July 5, 2011 (the "Application Form"). According to Jane Aspen, Street premises for which it sought coverage as 33rd Floor, New York, identified the "One New York Plaza, New York 10004" in the Appl ion Form. The premises for which Jane Street sought coverage was described on the insurance application as "40,000 sq Improv." According to Jane Street, "One New York Plaza, 33rd Floor, the field labeled "Street, the Application Form listed New York, County, contends New York 10004" in State, Moreover, Jane identi "40,000 sq ft Office Property, es Street City, office Property, that the Zip & 4 [sic] ." Application Improv" Form in the field labeled "Part Occupied," and identifies the potential carrier as "One Beacon America Insurance," not Aspen. The Application Form was neither completed nor signed by Jane Street. The identi but had ed no the "Property Section" construction of number listed in of the "# 4 of the Application building as basm' ts." "50+" For the Form, stories, section listed as "other occupancies" in the Application Form, Jane Street listed "offices." Subsequent the Aspen 2, to Policy No. its IMA8P2711 for 2011 to September 2, 2012 2011-2012 Aspen application, Jane the policy period September coverage for: limit for Electronic Data Processing Equipment million limit for the Commercial Out Program for purchased (the "2011-2012 Aspen Policy"). The Policy provided $15 million limit Street Equipment Breakdown (i) ("EDPIt); ("COP"); ("EB"). was covered under all three coverage parts, $10 million (ii) and $15 (iii) Flood damage but was capped at a $2.5 million sublimit. The three coverage parts partially overlapping areas of covers damages. three different, The COP Coverage but Part states the following: 1. Covered Business Personal Property ­ Covered business personal property means "your" business personal property in buildings or structures at a "covered location" or in the open (or in vehicles) on or wi thin 1,000 feet of a "covered location." (Partenza Aff., Ex. 2, at A023.) The COP Coverage Part 5 defines "covered location" to mean "any location structures, or coverage." (Id., or premises business where personal at A052.) 'you' property However, have buildings, covered under under the 2011-2012 Aspen Policy if a Scheduled Locations Endorsement was added, I covered location I Location means a Id. ) Schedule." location The this that Policy is "the term described contains a on Scheduled Locations Endorsement and a Location Schedule which lists New York Plaza, 33rd oor, New York, Location" for the COP Coverage Part. The EDP Coverage Part t "One NY 10004" as the "Covered Id., at A048.) insures damage to "protection and control systems" which are located "at a premises described on the A023. ) 'scheduled Under the of EDP coverages. ,II Coverage (Partenza Part, Aff., "Protection Ex. and 2, at control systems" are defined to include an "uninterruptible power supply system, A022.) line conditioner, and voltage regulator." Id. at It further contains a "schedule of coverages" which lists the described premises as aintiff's mailing address: "One New York Plaza, 33rd Floor, New York, NY 10004." (Id., at A013.) The EB Coverage Part insures property that results from an "accident' at "covered "Accident" is locations." defined in (Partenza the Policy 6 damages covered to "covered equipment" Aff. , to to Ex. include 2, a at A082.) "mechanical breakdown." include (Id., at "equipment energy. " (Id., kdown" at the transmits, states Policy "malfunction component or failure, or that failure faulty fined is The A052.) parts, "Covered equipment" generates, that includes electronic A051.) to utilizes "Mechanical of moving installation, or or blowout." (Id., at A021.) aintiff, According to the EB Coverage Part provides coverage that is subject to the terms and conditions of the COP Coverage Part. Part (Partenza Aff., insures damage results from an Id. including "a def at A082.) A052.) mechanical is caused by or "Covered equipment" "Accident" is direct id., breakdown" at transmits, is breakdown", "Mechanical The EB Coverage "covered equipment" that generates, at tion to at A082.) include "equipment energy." 2, to covered property which "accident" Id., locations." Ex. is at "cove defined to or utilizes physical A051), loss and the contained in the EDP Coverage Part and includes the "malfunction or failure of moving or electronic parts, blowout." (Id. component failure, at A021.) the COP Coverage Part. faulty installation, "Covered locations" According to Defendant, or is defined under the EB Coverage Part is "subject to the 'terms' and conditions of the Commercial Output Program ti tIed Agreement, Property Coverage Definitions, Part Property Not 7 under the Covered, Sections What Must Done In Case of Loss, Loss Payment, and Other Conditions." (Id., at A082.) After September 2, Jane Street basement purchased of One a 2011 but before September 2, generator Manhattan insurance broker za. advised Aspen and installed Neither that Jane Jane 2012, it in Street nor Street its had purchased the generator or that the generator was located in the basement level of One New York Plaza. Approximately a year after Jane Street was first issued the 2011-2012 Aspen Policy, Jane Street and Aspen renewed the 2011-2012 Aspen Policy with Policy No. from September 2, or "Aspen IMA8 P2712 , 2012 through September 2, Policy"). The Policy was 2013 renewed effective (the "Policy" "as expiring." Defendant contends that the Policy was renewed on the ident 1 terms as the 2011-2012 policy. On Manhattan October area. As a One 2012 result Hurricane of Manhattan level Street s generator suffered damages. generator was a total loss. 8 Sandy Sandy's basement I of 29, Plaza was hit storm flooded, the surge, and lower the Jane According to Jane Street, On notice of Aspen, or the Jane about loss November of Street the ~ 5 and Ex. flood, 1.) a Street's Aspen's premises on Services purchased the Aspen Group 2012, further learned that the the provided According of loss" to as (0' Hara contacted Jane and was granted access to November ("York") before Aspen. "description 29, 2012. During this Aspen's outside adjuster York learned generator after the Policy but to Street outside adjuster inspection of One New York Plaza, Risk Jane due to Hurricane Sandy." Street on or about November 5, Jane 2012, generator provided "Equipment under water, Aff., 1, that Jane start-date inception of 2012-2013 Street the had 2011-2012 Policy. 33rd Floor of One New York Aspen Plaza is approximately 40,000 square feet. On November 29, 2012, York sent a letter to Jane Street advising that the generator was located in the basement of One such, New York aza rather than an "insured location." As York wrote that coverage was limited to $50,000 under the sublimit Policy. r "locations You Elect Not to Describe" in the (O'Hara Aff., Ex. 2.) Following York's visit to One New York Plaza, various letters were sent between parties regarding the coverage of Jane Street's generator. On or around January 24, 9 2013, Aspen sent Jane Street a under the loss. letter icy was (Garson Declo, stating that the undisputed $50,000 and included a Ex. 2.) On or amount owed proposed proof of around February 26, 2013, Jane Street's counsel sent Aspen a sworn statement and enclosed a "revised proof of loss for the damage to t speci Aspen generator, cally providing that the actual cash value of the cla for damage to Aspen's generator is $2.2 mill Ex. ." (Garson Decl., 3.) Aspen rejected Jane Street's Proof of Loss via letter on March 4,2013. (Glaubinger Declo, Ex. 7.) On or around March 14, 2013, Aspen sent Jane $50,000. check limi t of Street's Street, coverage This is under the rson generator. Plaintiff reserved the amount Aspen Pol Decl., Ex. Aspen its rights for contends is the to Jane According 4.) damage to Jane when it accepted not paid any additional mon check. To date, Aspen reet a the to Jane Street for the generator. The Complaint of contract; h. breach (2) alleges three contract of breach of fiduciary duty; Plaintiff has moved for part of causes claim; 10 (1) and bad (3) 1 summary judgment on the Defendant judgment and dismissal on all claims. action: has moved r summary III. Plaintiff's Motion For Partial Summary Judgment Is Denied And Defendant's Motion for Summary Judgment And Dismissal Is Granted a. The Applicable Standard Summa judgment is granted only if there is no genuine issue of material fact and the moving party is entitl to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). In rmining whether a genuine issue of material fact does exist, a court must resolve all ambiguit s and draw all reasonable in rences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d r. 2002) . In addition, courts do not try issues of motion on a summary judgment, but rather, determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whet it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty 477 U.S. 242, 251 52, 106 S. Ct. 2505, 91 L. Ed. 2d 11 202 (1986). The moving party has the initial burden of showing that there are no material facts in dispute, Adic Kress & s v. S.H. Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "[TJhe non-moving party may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (internal quotations omitted). b. Defendant's Motion for Summary Judgment on the Contract Claim Is Granted And Plaintiff's Motion Is Denied 1. The COP Coverage Part Does Not Provide Coverage To The Generator Under New York law, "a policyholder bears the initial 12 burden of showing that the insurance contract covers the loss." Roundabout Theatre Co. v Continental Cas. Co., 751 N.Y.S.2d 4, 7 (N.Y. App. Div. 2002). In interpreting an insurance policy: The New York approach to the interpretation of contracts of insurance is to give effect to the intent of the parties as expressed in the clear language of the contract. Unambiguous terms are to be given their plain and ordinary meaning, and ambiguous language should be construed in accordance with the reasonable expectations of the insured when he entered into the contract. Southern New Jersey Rail Group, LLC v. Lumbermens Mut. Cas. Co., (S.D.N.Y. No. Aug. Assurance Co., June 06 19, 13, 4946(LAK) (AJP), 2007) 94 Civ. 2003); N.Y.3d 118, Civ. see 122, (quoting 7621, also United Cragg v. contracts relating insured the vor premises to is 2296506, States Allstate (N.Y. ambiguity in an exclusionary clause, in WL v. 2003 WL 21436219 at *2-3 950 N.E.2d 500 provision 2007 ambiguous, " [i] f that Similarly, the Am. *8 Home (S.D.N.Y. Corp., 17 (if there "is any [courts will] insured"). property, 2011) Indem. at construe the in insurance description meaning should be of the given which is the most favorable to the insured." Bronxville Props., Inc. v. Friedlander Grp" Inc" No. 2001-07276, 2001 WL 34687620 (N.Y. App. Div. Jan. 31, 2002). 13 "Insurance contracts must be common " speech . . Id. If an insurance covers a disputed location or object, from policy coverage . . . are interpretation or implication, and narrow construction . interpreted according to policy's coverage "exclusions or exceptions not to be but are to be accorded a . before permitted to avoid policy coverage, an insurance it must by extended strict company is satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, other reasonable State Farm Fire (N.Y. 2009) and that they are subject to no interpretation." & Cas. Co., Pioneer Tower Owners Assn. 12 N.Y.3d 302, 307, (quoting Seaboard Sur. Co. v Gil 304,311,476 N.E.2d 272 v 908 N.E.2d 875 tte Co., 64 N.Y.2d (N.Y. 1984)). New York courts have held that if the description of the premises is not restricted to a particular office suite or floor, the policy covers location. the entire premises In Zoha Creations, at Lloyd's, 575 N.Y.S.2d 51 policy at Street, issue insured New York, Ltd. V. (N.Y. App. at the described Those Certain Underwr rs Div. 1991), the insurance "Zohar Creations, Ltd., 2-4 West 47th New York 10036." The definition of "premises" was not otherwise restricted in the policy, and the insured only occupied Room 204A coverage extended to of that the location. insured's 14 The property court that held was that stolen while in the hallway outside Room 204A and to "the entire property described as 204 West 47th Street" since if the insurer had intended to restrict the defin ion of "premises", required to do so in clear and unambiguous language. "it was Id. at 51­ 52. In insurance contrast, oor particular or office contracts space limits particular area in a multi-story building. Inc. v. Home Ins. the insured, T&G 548 N.Y.S.2d 29 Knitwear, purchased describe coverage In T&G to locations added by the premises of one of its contractors, that twear Co., (N.Y. App. insurance insured a ------------------~ Div. from to the policy 1989), insurer the insured's goods at various locations. which the Co., that One of was the Lynch Knitting Mills, which occupied the second and third floors of a building in Brooklyn. this Shortly a damaged the Brooklyn submi tted a Lynch, that but was location claim also in the for for was added building. As loss not f loss to of a policy, a the only at sustained to possession the party the the on fire insured premises insured's not a of property the insurance the "Personal policy on the sixth floor of the same building. The policy in T&G Property of the Named Insured Knitwear insured . . all while at the location(s) 15 described in the Declarations or within 500 feet thereof if in the open, on land, or in or on land vehicles." The insured contended that, pursuant to this provision, the entire amount of loss at ACD was covered inasmuch as that property on the sixth floor was within 500 feet of the scheduled Lynch premises. The court rejected the argument: The additional coverage provided is for property at insured locations "or wi thin 500 thereof if in open, on land, or in or on land vehicles." The property at ACD was not in an insured location and, while may have been within a radius of 500 feet, was stored in an enclosed floor in a building, not the open, or on land, or in a land vehicle. The language of the policy, therefore, is clear and unambiguous and the lAS court properly granted defendant's motion for summary judgment . . . . . Id. at 30; Inc., see also Evergreen Nat. 111 S.W.3d (Tex. 669 App. Indem. Co. v. Tan It All, (where 2003) the policy provision covered "Your business personal property located in or on the building described in the Declarations or within 100 feet of the described premises" declarations specified insured I s suite, a and the suite in premises a described shopping in complex, the the and not the entire complex, was the "described premise" within the meaning of the insurance policy); Streamline Capital, 8123(NRB), L.L.C. v. Hartford 2003 WL 22004888, Cas. at *7-8 16 Ins. Co. , (S.D.N.Y. No. Aug. 02 Ci v. 25, 2003) (finding the phrase "property at the described premises" used in a commercial property policy meant the "plaintiff's own personal property in its office suite" as opposed elsewhere in One World Trade Center); Cimran Co., Inc., 963 N.Y.S.2d 182, to property Seneca Ins. 185 (N.Y. located Co., App. Inc. Div. v. 2013) (where the insured represented on its insurance application that the insured property was a one-story building, the fourth floor, from where a construction worker fell, was not "designated premises" insured by a commerci part of the general liability policy; "[iJf a policy insures a portion of a building, it does not of cover an injury occurring in another building"); Axelrod v. Maryland Cas. (N. Y. Di v. (where the demised premises was App. 1994) Co., portion 619 N.Y.S.2d 10, and unambiguously listed in the policy as being Street, 4th Floor," an accident that the clearly "29 East took place 10 on the 19th first floor was not covered). The Personal COP Property" which was buildings or structures at a (or vehicles) loca tion. "' Part Coverage on or (Partenza AfL, covers "business "Covered personal 'covered location' within Ex. 2, 1,000 feet at AO 57.) Business property in or in the open of a 'covered The Aspen Policy specified that the "covered location" that was insured was "One New York aza, 33rd oor, New York NY 10004." Further, the COP 17 Coverage Part defined premises where "covered locations" 'you' have means a (Id., location that at A052.) Endorsement" that personal [the Aspen Policy], Policy states: or property if the Schedule Locations is described on the The "any location business covered under this coverage. However, Endorsement is added to as included 'covered location' Schedule. "Schedule a Locations Location "Coverage provided by the Commercial Output Program coverages applies only to the 'covered locations' described on the Locations "Locations Schedule" New York aza, Given inclusion the Locations Schedule." identified the Schedule the and NY 10004. Schedule language at AO 9 6-98.) "Covered Location" 33rd Floor, New York, of (Id., Location therein, Id., as "One at A048.) Endorsement the The Aspen and Policy clearly limited its coverage to the 33rd floor of One New York Plaza. Plaintiff coverage with the 'covered contends for damage flood inclusion location'" of the that to the Jane "in Aspen Street's Policy provided downtown location bui ~~~~~~~~~~~~~~~~~--~--~ language, that this language extends coverage to the entire building at One New York Plaza, the basement. contends that (PI. this Br., is the at 8 only Policy. 18 (emphasis viable added).J COP including Plaintiff interpretation of the Plaintiff's reading would vitiate the inclusion of the 33rd Floor Schedule language in the Location Locations Schedule and the Endorsement. The property distinguishes "buildings inside property in the open. The phrase " a 'covered location' or the structure" building from buildings or structures at coverage extends to property (a) that is at a "covered location" within a or the or that building or structure; in language of the (b) open" clari es in the open on or within 1, 000 of the "covered location." See, e.g., T&G Knitwear Co., 548 N.Y.S.2d at 30; velvet Ice C Inc. v. Wausau Ins. Cos. 698 ------------------~----------------------------- F. Supp. 128, 130 (S.D. Oh 1988) (the phrase "in or on the building or in the open (including within vehicles) on or within 100 feet of the designed premises" unambiguously insures property inside the building or in the open on or wi thin 100 feet of the building). This interpretation of the Policy is the only reading that does not destroy the language of the Schedule Location Endorsement and Locations Schedule. Reading Locations Schedule the as Schedule Locations identifying only Endorsement the 33rd and floor the as a "covered location" is consistent with Jane Street's application for insurance, which identified the premises information, an entry separate from the applicant's mailing address, as "One New 19 York Plaza 33rd Floor New York application lists "40, 000 sq. NY 10004." In addition, the ft Office Property" as the "Part Occupied" with respect to the premises information, and the 33rd Floor of One New York Plaza is approximate 40, 000 square feet. (0 I Hara Aff., 7.) <J1 covering only the Aspen The Policy is thus 33rd Floor of One Policy did not cover Jane initial burden of showing York Street I s the basement of One New York Plaza, its appropriately Plaza. As read such, as the generator located in and Plaintiff has failed to that its loss took place at a "covered location." Roundabout Theatre Co., 751 N.Y.S.2d at 4. Plaintiff cites to Japour v. 625 N.Y.S.2d 750 an insurer I s also be the Ed Ryan & Songs Agency, (N.Y. App. Div. 1995), for the proposition that interpretation must only fair not only interpretation. The be reasonable, but insurance policy at issue in Japour defined covered property with reference to the building described in the declarations but addi tions" 752. three-car Id. at garage declarations was The Court located behind a "completed concluded the thus makes the addition" si tuat ion that "completed the building described coverage was available for the garage. language included and to policy in the bui lding, the The di detached and rence policy contemplat Japour not similar to those in the instant action. in Importantly, it is difficult to read the "Scheduled Locations Endorsement" as 20 anything other than a limit of coverage to the 33rd floor. Jane Street also tes L.L.C. v. Farmers Mut. Co., ------------------------------------the proposition that the basement of a building. to 247 P.3d 236 "covered (Mont. location" incl udes The insurance agreement described buildings the in Fixtures, (2 ) Permanently personal furnished by property you as structures at the uding: (1) Buildings premises Completed including outdoor fixtures; (3 ) (al installed: Your and Declarations, additions: the in Park Place defined "Covered Property" as "include [ing] the for This case is also sufficiently distinct from the instant action. meaning 2010) Machinery; and Equipment; (4) in apartments, landlord; . . . " (bl rooms rd. at or common 239. The areas Court concluded that a carport was covered under the agreement partly due to the fact that the carport I s value total value of the apartment building. was included in the Significantly, the Court noted that the insured "premises" could not be limited to only the buildings described in the declarations since "coverage very clearly extends beyond the buildings specifically listed in this section," such as for completed additions, and outdoor fixtures. rd. at 241. However, mach ry, equipment the court declined to accept the insured's argument that "premises" was defined to be "as per [the] location address" in the policy. rd. at 241. 21 Given Aspen installed elects] the terms the and generator not to describe," "covered location." generator and language in a in is limited [the insured 2.), Ex. COP coverage does coverage Policy, "location" (O'Hara Aff., Thus, Aspen to and not at a not extend to the $50,000 the sublimit previously paid by Aspen to Jane Street. 2. The EB Coverage Part Does Not Provide As that previously covers noted, "direct the physical EB Coverage loss to Part provides covered property caused by or resulting from an 'accident' to 'covered equipment' at 'covered locations'." (Partenza Aff., Ex. 2, at A082.) Coverage Part "is also subject to the 'terms' EB and conditions in the Commercial Output Program - Property Coverage Part under the sections Definitions titled "Covered Location" and II "Scheduled Locations Accordingly, Endorsement" the terms from the COP Coverage Part applies to the EB Coverage Part. The EB Coverage Part goes on to state: "[ t] he term covered property as used in this coverage part means the types property described under the Property Covered section of the 22 Commercial Output the property covered Supplemental above, the Program - Marine COP Property Coverage described Coverages.!! Coverage Part in the (Id. ) does as well Supplemental Given not Part that, cover Jane as as and noted Street's generator located in the basement of One New York Plaza and the "Covered Location" and "Scheduled Locations Endorsement 11 terms of the Policy limits coverage of the COP Coverage Part to the 33rd floor, the EB Coverage Part similarly does not cover the generator. l 3. The EDP Coverage Part Does Not Cover The Generator The EDP Coverage Part extends systems at control and described at A023.) located the "schedule The "schedule Jane coverages." of coverages!! coverage to protection Street's "premises" (Partenza Aff., Ex. 2, attached to the EDP Coverage Part states that the "described premises" is "One New York 1 Plaza, 33rd Floor, New York, NY 10004." (Id., at AOI3.) Under the COP and EB Coverage Parts, "Accident" means "direct physical loss [from, but not limited to] a. mechanical breakdown; . . . . " (Id., at A051.) The only definition of "mechanical breakdown" in the Aspen Policy is in the EDP Coverage Part, and it defines the term as "the malfunction or failure of moving or electronic parts, component failure, faulty installation, or blowout." (Id., at A021.) Aspen argues that a mechanical breakdown did not occur, since a "mechanical breakdown must be the cause of loss, rather than an effect of loss." (Def. Op., at 16 n.5.) Given that none of the cases cited by Defendant is an opinion from a New York court or a court in this jurisdiction and the EB Coverage Part does not extend to the generator because of the reasons noted above, analysis of what is a "mechanical breakdown" in the policy is not required at this time. 23 Gi ven the EDP clear unequivocal Coverage Part only covers located on the 33rd floor, Street's generator language in the Aspen located protection and Policy, control the systems and coverage does not extend to Jane in the basement of One New York Plaza. Given the reasoning above, the COP, EDP and EB Coverage Parts do not extend insurance coverage under the Aspen Policy to Jane Street's damaged generator in the basement of One New York Plaza. Plaintiff's motion for summary judgment on these issues is denied, and Defendant's motion is granted. c. Defendant's Motion For Summary Judgment On The Breach of Fiduciary Duty Cla~ Is Granted The Complaint has made an additional of fiduciary Street due loss for Plaintiff duty has to Aspen's of its requested for s for this claim. attorneys' Generally, refusal to generator. punitive (Id. ':l[ aim for breach compensate (Compl. damages ':l[':l[ as Jane 42-49.) well as (b).) "[ a] n insurance contract does not give rise to a special relationship of trust or confidences unless special circumstances exist that might 24 give rise to a fiduciary relationship." Trustees of Princeton Union Fire Ins. Co. of Pittsburgh, (N.Y. Sup. America, the which (citing may be render 506, Meagher v. imbued the (S.D.N.Y. v. Prudential Div. elements 2001). of more Metropolitan Life than a Co., 463 (Table) Co. However, trust (analyzing Ins. National Ins. between Ins. Estate of "under insurer and mere Metropolitan Life 1997) v. 839 N.Y.S.2d 437 relationship relationship Dornberger v . 546 App. the with Pa., Bates (N.Y. circumstances, association." Supp. 2007) 724 N.Y.S.2d 3 right insured Ct. University and confidence arm's-length 961 Co., of N.Y.S.2d F. Wheaton, 727 (N.Y. Sup. Ct. 1983)). Unlike Plaintiff has the situations in not pled any elements Dornberger and Meagher, of trust or confidence in its relationship with Aspen that showed a more than arm's-length association. That the Policy insures "protection and control systems," including "uninterruptible power supply systems," does not place Aspen into a position of special trust and fiduciary responsibility. Indeed, the fact that Jane Street did not report the purchase and installation of the generator into the basement of One New York Plaza to Aspen prior to the renewal of the 2011­ 2012 Aspen Policy belies any such relationship of trust or confidence. Thus, despite the Dornberger Court's dicta that "New York courts do not follow a per 25 se rule prohibiting the recognition of a fiduciary relationship in the insurance context rather, New York courts will permit a jury to assess the circumstances of the relationship to determine if it is one of trust and confidence," 961 F. Supp. Plaintiff has relationship not pled any existed between 506, 546-47 allegations Aspen and that Jane (S.D.N.Y. suggests Street 1997), such that a would justify dismissal of Defendant's motion for summary judgment on this claim. Given summary the judgment reasoning regarding above, Plaintiff's Defendant's claim motion for for breach of fiduciary duty is granted and the claim is dismissed. d. Defendant's Motion For Summary Judgment On The Bad Faith Claim Is Granted Plaintiff has also made a claim for bad faith based on Aspen's denial of Jane Street's insurance claim. 54.) As with the breach of fiduciary duty claim, requested for this claim. punitive is as well as 'l1'l1 50­ Plaintiff has attorneys' fees for contracts of (Id. 'l1 (c).) in "As insurance damages (Compl. a all covenant contracts, of good 26 implicit faith and in fair dealing, such that I a reasonable insured would understand promises to investigate in good Bi-Economy Market, N.Y.3d 187, v. Con t' 1 1995) ). 194, Ins. that the insurer and pay covered claims.'" Inc. v. Harleysville Ins. Co. of New York, 10 886 N.E.2d 127 87 Co. However, "an N.Y.2d insurer (N.Y. 2008); 308, is 318, not 662 liable (citing N.Y. N.E.2d in Univ. 763 excess (N.Y. of the policy limits for the breach of an insurance contract absent bad fai th." No. In re AXIS Reinsurance 07-CV-07924-JSR, 2010) (quot i ng 2010 WL Co. 1375712, to faith is t an ying *5 (S.D.N.Y. Li tig. , Mar. 7, punitive (N.Y. App. and att damages 1996)). With fees, "bad applicable standard by which to determine whether insurer will policy at Ins. _S_T_V_ _ G_r_o_u---"p-','---_I_n_c_.__v_.__Am e_r_i_c_a_n _ __ _ C_o_n_t_i_n_e_n_t_a_1 650 N.Y.S.2d 204 regards REFCO Related limits. be made Absent to the pay for damages in excess requisite showing of bad of faith, its an insurer's monetary exposure is restricted to the policy limits." Id. at *7. Plaintiff's claim for bad faith rests solely on Aspen's refusal to pay for the loss of the generator under the Policy. (Compl. '3l 51.) "When the alleged breach of t covenant of good faith and implied r dealing is intrinsically tied to the damages allegedly resulting from the breach of the insurance contract, those c ims are redundant." 27 Trustees of Pr v. Univ. Nat'l N.Y.S.2d 437 insurer IS Union (Table) Fire Ins. (N.Y. Co. Sup. interpretation of Ct. an of Pittsburgh, 2007). Moreover, insurance unreasonable no bad faith can be found. Pa., Id. 839 where an policy not is Mere difference of opinion between an insurer and an insured over the availabil of coverage does not constitute bad faith; to show bad faith the insured must demonstrate that "no reasonable carrier would, under the given facts" deny coverage. Sukup v State of New York, 19 N.Y.2d Bartlett 519, v. 522, 227 Nationwide 2013 WL 623497, at does a recognize contractual 842 (N.Y. Fire Ins. Co., Mut. *3 (W.D.N.Y. cause i th bad N.E.2d of upon Feb. action 19, insurer denied coverage as a and (2) for an coverage under the standards of a see also 12-CV-4 35-A., ("New York law insurer's legations result of the insurer lacked even an No. 2013) well-pleaded the 1967); extra- that: (1) 'gross negligence'; 'arguable' basis for denying reasonable insurer.") (citing Sukup, 19 N.Y.2d at 281). Plaintiff sufficiently pled has not allegations shown to suf support cient an evidence inference of or bad faith. Plaintiff made mere conclusory allegations that Defendant denied coverage "where the in bad th, but insurance carrier has coverage." Estee Lauder Inc. v. an bad faith arguable cannot case for be found denying 2012 28 Op 30474 (U) NY Sl Meats v Ins. aff'd 62 Co. (N. Y. Sup. of N. Am., N.Y.2d 895 Ct. 2012) (quoting _D_aw_n _ __ _ 470 N.Y.S.2d 624 (1984)). Plaintiff (N.Y. App. and Div.), Defendant had a legitimate dispute as to the interpretation of the Aspen Policy. Aspen also promptly conducted its investigation into the damage at One New York Plaza and paid the sum owed to P the undisputed portion of the Policy. intiff as per s conduct by Defendant se to the level of bad faith. does not Jane Estates, Inc. Street cites to v Hudson Ins. and Co., 10 N.Y.3d 200, Panasia 886 N.E.2d 135 (N.Y. 2008), contending that New York law recognizes a claim for consequential damages for the breach of the covenant fai th and fair dealing in an insurance contract. 13.) Jane cost in Street claims bringing the consequential instant "[C]onsequential damages re context, so good (Compl. Reply, solely damages (Pl. for ~~ (b); at the (c).) ing from a breach of the covenant ing may be asserted in an insurance of good faith and fair contract action. of long as the damages were within the contemplation of the parties as the probable result of a breach at the time N.Y.3d at 203 10 N.Y.3d "designed at to of or or to contracting." ernal quotations omitted); 193 94 (noting compensate a that party 29 Panasia Estates, Bi-Economy Market, consequential for 10 reasonably damages are foreseeable damages, must be proximately caused by the breach and must be proven by the party seeking them"). Plaintiff has not pled that they suffered any damages as a consequence of the alleged bad faith refusal to pay their claim other than action to en on dama the costs associated rce their claim. with Plaintiff's a legal aim is predicated s to a generator that Plaintiff bought after it entered into the initial 2011-2012 Aspen Policy, notify bringing Defendant generator about the after until purchase the loss or of and Plaintiff did not installation the of the generator. Any consequential damages that arose as a result of the loss generator and Aspen I s refusal the to pay for the entire loss were not contemplated by both parties at the time of the execution of the 2011-2012 Aspen Policy or the Policy. Thus, by Plaintiff are Economy Market, insurance inapposite to the 10 N.Y.3d at 195 contract is receive it promptly a not instant the cases cited action. See Bi­ (noting that the purpose of an just to receive money but also to er calamitous event and that the insurer breached this implicit portion of the policy as a result of its delay to evaluate and pay N.Y.3d at issues existed damages 203 sought (denying regarding by for the motion to whether Plaintiff loss); dismiss the at 30 Panasia because parties the time Estates, more contemplated or prior 10 fact the to contracting) Sup. Ct. an i Feb. insurer's Estee Lauder Inc., 23, 2012) No. 602379-05, slip. op. (N . Y. (upholding a claim of bad faith against successor-in-interest where an Appellate Division ruling required the insurer to pay the insured's defense costs). Given summary judgment the reasoning regarding above, Plaintiff's granted and the claim is dismissed. 31 Defendant's claim for motion bad faith for is rv . CQnc~us.ion Based on the reasoni.ng above, sununary judgment is denied, Plaintiff I s and Defendant I s motion motion for judgment and dismissal is granted. It is so ordered. New York, NY ROBERT W. SWEET U.S.D.J. for summary

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