Verlus et al v. Liberty Mutual Fire Insurance, Inc. et al
Filing
35
OPINION & ORDER re: 25 MOTION for Summary Judgment filed by Liberty Mutual Insurance Company. For the foregoing reasons, Defendant Liberty's motion for summary judgment is GRANTED. The Court respectfully directs the Clerk to terminate the motion at ECF No. 25 and to amend the caption to reflect Liberty Mutual Insurance Company's dismissal from this case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 11/12/2015) (mml)
USDC SDNY
DOCll'.\IF\T
ELECT RO'.\ !CALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
I I
DOC#:
DATE FILED: I l I.} d<>i:)'
JEAN VERLUS, JOANNE VERLUS, and
PAULINE VERLUS,
Plaintiffs,
No. 14-cv-2493 (NSR)
-againstOPINION & ORDER
LIBERTY MUTUAL INSURANCE COMPANY,
WILSON TAYLOR, BEYERL YTAYLOR, and
GRACE TAYLOR,
Defendants.
NELSONS. ROMAN, United States District Judge
This action arises out of an attack by Defendants Wilson, Beverly, and Grace Taylor's
(collectively, the "Taylors") two dogs on Plaintiffs Jean and Joanne Verlus. Following the
attack, Plaintiffs sued the Taylors for their injuries in Westchester County Supreme Comt. The
action resulted in a judgment, entered on September 24, 2013, in favor of Plaintiffs in the amount
of$1,076,494.72. Defendant Liberty Mutual Insurance Company ("Liberty"), the Taylors'
insurance carrier, paid Plaintiffs $314,619.67 inclusive of interest, purp01tedly in accordance
with the liability provisions of the Taylors' insurance policy (the "Policy"). Liberty argues that
the attack constitutes only one "occurrence" under the Taylors' policy and that payment for each
occurrence is capped at $300,000.
Plaintiffs subsequently filed this Complaint, seeking a declaratory judgment that the
attack by the Taylors' dogs constitutes three separate "occurrences" within the meaning of the
Policy, requiring payment of $900,000 to Plaintiffs.
Before the Comt is Liberty's motion for summary judgment. For the following reasons,
Liberty's motion is GRANTED.
BACKGROUND
Though the facts of this matter are not genuinely in dispute, Plaintiffs’ failure to
specifically controvert Defendant’s Local Civil Rule 56.1 Statement (“Def.’s 56.1”) requires this
Court to deem Defendant’s version of the facts admitted for purposes of this motion. 1 S.D.N.Y.
Loc. Civ. R. 56.1(c).
On May 28, 2011, Plaintiffs Jean and Joanne Verlus were walking on the street near the
Taylors’ home in White Plains, New York. (Def.’s 56.1 ¶¶ 2-5.) Jean and Joanne were walking
close together, no more than a few feet from one another, while having a conversation in normal
voices. (Id. ¶¶ 7, 15.) Joanne was on the right side of the street; Jean was on the left side of the
street. (Id. ¶ 9.) At some point during Jean’s and Joanne’s walk, the Taylors’ two American Pit
Bull Terriers, Doom and Diva, started running towards Jean and Joanne. (Id. ¶ 8.) Both dogs
approached Plaintiffs from the same direction, the right side of the street, nearest to Joanne. (Id.
¶ 9.) The darker colored dog, Doom, jumped towards Jean’s face, while the lighter colored dog,
1
Plaintiffs and Defendant Liberty have each failed to follow the simple mandates of Local Civil Rule 56.1.
Defendant Liberty’s Local Civil Rule 56.1 Statement, although spanning only 14 pages in total, contains nearly 10
pages of excerpted deposition testimony from Plaintiffs Jean and Joanne Verlus. (Def.’s 56.1 at 2-12.) These
excerpts are a far cry from the “brief, numbered paragraphs” contemplated by the Rule. (See Committee Note,
S.D.N.Y. Loc. Civ. R. 56.1.) Defendant should have summarized the deposition testimony into concise, numbered
paragraphs, with citations to the relevant portions of the deposition transcripts.
Likewise, Plaintiffs failed to submit a proper opposition to Defendant’s Rule 56.1 Statement. The Rule
states that “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing
party.” S.D.N.Y. Loc. Civ. R. 56.1(c). Plaintiffs failed to deny, let alone specifically controvert, any of Defendant’s
56.1 statements, instead opting to submit their own statement of material facts. Further, though less problematic,
Plaintiffs also failed to follow this Court’s Individual Practices, which require that the nonmoving party “reproduce
each entry of the moving party’s Rule 56.1 Statement and . . . set out responses to each entry directly beneath it.”
Individual Practices, Rule 3(G)(iii). Plaintiffs submitted their own Local Civil Rule 56.1 Statement, without
reference to any of Defendant’s statements. Plaintiffs’ failure to specifically controvert Defendant’s statements
requires the Court to deem them admitted for purposes of this motion. S.D.N.Y. Loc. Civ. R. 56.1(c); Gadsden v.
Jones Lang Lasalle Americas, Inc., 210 F. Supp. 2d 430, 438 (S.D.N.Y. 2002) (“Courts in this circuit have not
hesitated to deem admitted the facts in a movant's Local Civil Rule 56.1 Statement that have not been controverted
by a Local Civil Rule 56.1 statement from the nonmoving party.”) (collecting cases); McCarthy v. Wachovia Bank,
N.A., 759 F. Supp. 2d 265, 272 (E.D.N.Y. 2011) (failure to submit a 56.1 statement specifically controverting the
moving party’s 56.1 statement results in the statements being deemed admitted for purposes of the motion).
2
Diva, attacked Joanne. (Id. ¶ 8.) Jean and Joanne then ran in opposite directions in an attempt to
escape the dogs. (Id. ¶ 9.)
Diva bit Joanne on her buttocks and her middle finger. (Id. ¶ 16.) Joanne then fell to her
knees and crawled to higher ground – what she described as a cement block – out of Diva’s
reach. (Id. ¶¶ 16, 17.) Diva barked at Joanne for a short period of time and then left to join
Doom’s attack on Jean. (Id. ¶ 17.) The entire attack on Joanne lasted less than one minute. (Id.
¶ 18.)
Meanwhile, Doom was attacking Jean. Diva then joined the attack, biting Jean’s groin
area and feet. (Id. ¶ 10.) The entire attack on Jean lasted three or four minutes. (Id. ¶ 13.) Jean
testified that the dogs’ owner watched the entire attack, and despite Jean’s pleas for help, did
nothing to stop the attack. (Id. ¶ 11.)
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the initial burden of pointing to evidence in the record, “including depositions,
documents [and] affidavits or declarations,” id. at 56(c)(1)(A), “which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may also support an assertion that there is no genuine dispute by
“showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to
the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks
3
omitted). A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248; accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summary order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” nor is it to determine a witness’s credibility.
Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.” Id. at 250.
Summary judgment should be granted when a party “fails to make a showing sufficient to
establish the existence of an 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. The party asserting that a fact is
genuinely disputed must support their assertion by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). The nonmoving party “may not
rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Moreover, “[a nonmoving party’s] self-serving statement, without direct or circumstantial evidence to support the
charge, is insufficient to defeat a motion for summary judgment.” Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008)
aff’d, 604 F.3d 712 (2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d
4
342, 353 (S.D.N.Y. 2003)).
DISCUSSION
I.
The Attack Constitutes One Occurrence Under The Policy
A.
Relevant Law
The issue presented to the Court is straightforward – does the attack by the Taylors’ dogs
constitute one or three occurrences under the Policy. Plaintiffs argue that the attack constitutes
three occurrences – the first attack on Jean Verlus by Doom; the second attack on Joanne Verlus
by Diva; and the third attack on Jean Verlus by Diva. Defendant contends that the attack by the
two dogs constituted one continuous act, such that it should be considered the result of one
occurrence under the Policy. Where, as here, there is no dispute as to what occurred, the issue of
whether the underlying act or acts constitute more than one occurrence is a question of law for
the Court to decide. Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172 (1973).
When “determining a dispute over insurance coverage, we first look to the language of
the policy.” Consol. Edison Co. of New York v. Allstate Ins. Co., 98 N.Y.2d 208, 221 (2002)
(citing Breed v. Insurance Co. of N. Am., 46 N.Y.2d 351, 354 (1978)). The Court “construe[s]
the policy 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.’” Id. at 221-22 (quoting Hooper
Assoc. v. AGS Computers, 74 N.Y.2d 487, 493 (1989)). Moreover, when interpreting an
insurance policy, “an unambiguous provision must be given its plain and ordinary meaning.”
Allianz Ins. Co. v. Lerner, 416 F.3d 109, 116 (2d Cir. 2005) (quoting State of New York v. Am.
Mfrs. Mut. Ins. Co., 188 A.D.2d 152 (3d Dep’t 1993) (internal quotation marks omitted)).
Simply put, insurance policies are interpreted like any other contract. White v. Cont’l Cas. Co., 9
N.Y.3d 264, 267 (2007).
5
In New York, courts generally apply the “unfortunate event” test “to determine whether
there are one or more occurrences within the meaning of an insurance clause limiting coverage to
a certain amount per occurrence.” Roman Catholic Diocese of Brooklyn v. Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa., 21 N.Y.3d 139, 148 (2013) (internal citation, quotation marks, and
alterations omitted). This approach rejects “other approaches that would equate the number of
occurrences with either ‘the sole proximate cause’ or by the ‘number of persons damaged.’” Id.
(internal citations omitted). The unfortunate event test will not apply, however, when an
insurance policy indicates “an intent to aggregate separate incidents into a single occurrence.”
Id. In Roman Catholic Diocese of Brooklyn, the New York Court of Appeals provided the
following as an example of such aggregating language: “(a)ll such exposure to or events
resulting from substantially the same general conditions during the policy period shall be deemed
one occurrence.” Id. at 149 (quoting Consol. Edison Co. of New York, 98 N.Y.2d at 222)
(emphasis in original).
B.
Application
The Policy defines “occurrence” as “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions, which results, during the policy
period, in: a. ‘Bodily injury’; or b. ‘Property damage.’” (Declaration of Joseph Egan in Support
of Motion for Summary Judgment (“Egan Decl.”), Ex. 3, LibertyGuard Deluxe Homeowners
Policy at 1.) The Policy also describes the limit of liability per occurrence as follows:
Our total liability under Coverage E for all damages resulting from any one “occurrence”
will not be more than the limit of liability for Coverage E as shown in the Declarations.
This limit is the same regardless of the number of “insureds,” claims made or persons
injured. All “bodily injury” and “property damage” resulting from any one accident or
from continuous or repeated exposure to substantially the same general harmful
conditions shall be considered to be the result of one occurrence.
(Id. at 14.)
6
Comparing the language limiting the liability per occurrence in the Policy with the
language cited by the New York Court of Appeals in Roman Catholic Diocese of Brooklyn, it is
clear that the Policy “evinces an intent to aggregate the incidents . . . into a single occurrence.”
Roman Catholic Diocese of Brooklyn, 21 N.Y.3d at 149. See also Mt. McKinley Ins. Co. v.
Corning Inc., 96 A.D.3d 451, 452 (1st Dep’t 2012). The Policy includes unambiguous language
that “‘bodily injury’ . . . resulting from any one accident or from continuous or repeated exposure
to substantially the same general harmful conditions shall be considered to be the result of one
occurrence.” (Egan Decl., Ex. 3, LibertyGuard Deluxe Homeowners Policy at 14) (emphasis
added.) The Court therefore declines to apply the unfortunate event test to determine the number
of occurrences under the Policy.
When not applying the unfortunate event test, the Second Circuit, in analyzing similar
contractual terms, has noted that “New York courts appear to interpret such a grouping provision
as at most combining exposures emanating from the same location at a substantially similar
time.” Bausch & Lomb Inc. v. Lexington Ins. Co., 414 F. App’x 366, 368-69 (2d Cir. 2011)
(citing Ramirez v. Allstate Ins. Co., 26 A.D.3d 266 (1st Dep’t 2006) (interpreting similar
provision as grouping infants’ “exposure to the same lead hazard in the same apartment”); Mt.
McKinley Ins. Co. v. Corning Inc., 28 Misc.3d 893, 907-09 (Sup. Ct. 2010) aff’d, 96 A.D.3d 451,
452 (1st Dep’t 2012) (noting cases interpreting similar provision as grouping incidents arising at
same place and roughly same time)).
Turning to the pertinent facts of this case, Plaintiffs Jean and Joanne Verlus testified
during their respective depositions that they were walking together, roughly within an armslength distance from each other, when they saw two dogs running towards them. (Def.’s 56.1 ¶¶
5-8, 14-15.) The dogs attacked Jean and Joanne simultaneously. (Id. ¶ 5.) One dog, Doom,
7
attacked Jean; the other dog, Diva, attacked Joanne. (Id. ¶¶ 10, 16.) Joanne was able to “climb[]
to higher ground” to escape Diva’s attack, at which point Diva left to join Doom’s attack on
Jean. (Id. ¶¶ 10, 16-17.) The entire encounter with the dogs lasted about three or four minutes.
(Id. ¶ 13.)
Although the issue of whether a multi-dog, multi-victim attack constitutes one or more
occurrences under an insurance policy has not been decided in this Circuit, Defendant directs the
Court to two cases, one from Connecticut and one from Tennessee, which held that multi-dog
attacks did not constitute multiples occurrences. See Sun v. Traveler’s Indem. Co., No.
CV990268822S, 2001 WL 576656, at *1 (Conn. Super. Ct. May 9, 2001) (holding that attacks
on one individual by two dogs at nearly the same time constituted one occurrence); Am. Modern
Select Ins. Co. v. Humphrey, No. 3:11-CV-129, 2012 WL 529576, at *1 (E.D. Tenn. Feb. 17,
2012) (holding that a 20 minute attack on one individual by seven dogs constituted one
occurrence). In Sun, the Superior Court of Connecticut looked to “the event or events triggering
liability on the part of the insured” to determine the number of occurrences under the policy.
Sun, 2001 WL 576656, at * 2. In Humphrey, the Eastern District of Tennessee applied an
“effects” test to determine the number of occurrences under the policy. The Court explained
“that Tennessee courts look not to the cause of an incident when construing a ‘per occurrence’ or
‘per accident’ provision, but to the result or effect of the attack on the victim or victims.”
Humphrey, 2012 WL 529576, at *8. Though both courts reached the same conclusion – that
multi-dog attacks on one individual constitute one occurrence – they did so based on different
tests, neither of which the parties assert are the applicable test under New York law. Instead, this
Court is guided by the Second Circuit’s understanding of New York law on this issue – that such
8
provisions should be interpreted to “at most combin[e] exposures emanating from the same
location at a substantially similar time.” Bausch & Lomb Inc., 414 F. App’x at 368-69.
Plaintiffs presumed, albeit incorrectly, that the unfortunate event test would apply to the
Policy and only analyzed their claims under that test. Despite Plaintiffs’ error, the Court will
apply Plaintiffs’ arguments to the broader test of whether the underlying attacks emanated from
the same location at a substantially similar time. Plaintiffs’ arguments can be boiled down to the
following: (1) there were three separate and distinct attacks by two dogs; (2) the attacks were
temporally and spatially separate – Jean and Joanne were attacked “almost fifty feet away from”
each other, and the attack on Jean was longer in duration; and (3) the attacks were not causally
connected. (Pl.’s Opp. at 7-16.)
After a thorough review of the facts underlying this action, and having taken into account
Plaintiffs’ arguments in opposition to the instant motion, the Court finds that the attack by the
Taylors’ dogs constituted “continuous or repeated exposure to substantially the same general
harmful conditions” and thus qualifies as one occurrence under the Policy. The attack occurred
while Plaintiffs Jean and Joanne Verlus were walking within arms-length of each other and
lasted for a very short period of time. Although Jean and Joanne were not exposed to the exact
same conditions, they were exposed to the same general conditions – a simultaneous attack by
two dogs – which the Policy makes clear are treated as one occurrence for liability purposes.
“[T]o say that the ‘general conditions’ were not the same would deprive the word ‘general’ of all
meaning.” Nesmith v. Allstate Ins. Co., 24 N.Y.3d 520, 525 (2014). Moreover, it is beyond
dispute that the attacks on Jean and Joanne emanated from the same location – both Plaintiffs
testified that the dogs were running towards them from the same direction at the same time – and
9
that the attacks occurred at a substantially similar time - Jean and Joanne were attacked
simultaneously, over a short three to four minute period.
To the extent Plaintiffs argue that because Jean and Joanne were both injured the Court
should find their injuries constitute multiple occurrences, the plain language of the Policy
forecloses such a result, as it limits liability per occurrence "regardless of the number of
'insureds,' claims made or persons injured." (Egan Deel., Ex. 3, LibertyGuard Deluxe
Homeowners Policy at 14.)
CONCLUSION
For the foregoing reasons, Defendant Liberty's motion for summary judgment is
GRANTED. The Court respectfully directs the Clerk to terminate the motion at ECF No. 25 and
to amend the caption to reflect Libe1ty Mutual Insurance Company's dismissal from this case.
Dated:
-¥1'-
SO ORDERED:
November /'/,., 2015
White Plains, New York
NEL~
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?