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Recognizing the right of a private citizen to bring an action under the section where there is evidence of specific medical treatment which has been paid by Medicare.
Summary of this case from Frazer v. CNA InsuranceOpinion
98 Civ. 4790 (RCC)
February 5, 2004
MEMORANDUM OPINION AND ORDER
This case arises out of an alleged failure by Utilities Mutual Insurance Company ("UMI") and Niagra Mohawk Power Company ("Niagra Mohawk") (collectively, "Defendants") to pay disability benefits to Robert Manning ("Plaintiff), who was injured in a fall from a utility pole while working as a linesman for Niagra Mohawk in 1962
Manning's second amended complaint alleges (1) a claim under the Medicare Secondary Payer Act for Defendants' failure to pay for benefits that were provided by Medicare as a secondary payer, and (2) a claim for bad-faith failure to pay benefits under New York common law. Presently before the Court are the following motions Manning's motion for summary judgment and/or judgment on the pleadings dismissing UMI's counterclaim for indemnity, UMI's cross-motion for summary judgment on its counterclaim for indemnification, UMI's motion for summary judgment on Count n of the second amended complaint; Manning's motion for summary judgment on Count I of the second amended complaint; and Niagra Mohawk's motion for summary judgment dismissing all claims against Niagra Mohawk.
I. BACKGROUND
In 1962, during the course of his employment with Niagra Mohawk, Manning fell from a utility pole, rendering him a quadriplegic. From 1962 to 1968, UMI, Niagra Mohawk's workers' compensation insurance carrier, paid Manning workers' compensation benefits. In 1968, Manning obtained a recovery in the amount of $388,000 from New York Telephone Co., which owned the utility pole from which Manning had fallen. In 1973, having exhausted that recovery, Manning requested that Defendants resume his benefits under New York State Workers' Compensation Law. When Defendants refused, Manning became financially unable to pay for his medical costs, and Medicare began to cover some of his medical expenses.
In 1979, Manning initiated litigation before the New York State Workers' Compensation Board ("WCB"). Despite being ordered several times by the WCB to resume paying benefits to Manning, Defendants continued to litigate the case, appealing to the New York appellate courts on three occasions. See Manning v. Niagra Mohawk Power Corp., 501 N.Y.S.2d 218 (3d Dep't 1986); Manning v. Niagra Mohawk Power Corp., 603 N.Y.S.2d 214 (3d Dep't 1993); Manning v. Niagra Mohawk Power Corp., 650 N.Y.S. 2d 431 (3d Dep't 1996).
The parties entered into a settlement in 1997 ("Stipulation"), which released Defendants from all claims within the exclusive jurisdiction of the WCB for $1.9 million. However, Manning expressly reserved claims under state or federal law which were not within the exclusive jurisdiction of the WCB Manning filed this action on July 7, 1998
This case has a long procedural history, which is set forth in two prior opinions of this Court, see Manning v. Utilities Mut Ins. Co., 1999 WL 782569 (S.D.N.Y. Sept. 30, 1999); Manning v. Utilities Mut Ins. Co., 2000 WL 1234591 (S.D.N.Y. Aug. 31, 2000), and a subsequent opinion issued by the Second Circuit, see Manning v. Utilities Mut. Ins. Co., 254 F.3d 387 (2d Cir. 2001). For the benefit of the reader, the Court will summarize the salient procedural facts.
In August 2000, after motions for reconsideration, this Court granted Defendants summary judgment against Manning and dismissed the complaint. Manning's complaint included the following claims: (1) a claim under the Medicare Secondary Payer statute, 42 U.S.C. § 1395y(b)(3)(A), for damages of two times $876,321, the cost of Manning's medical care since 1992, which Manning alleged should have been paid by Defendants but instead was paid by Medicare ("MSP claim"); and (2) a claim for compensatory and punitive damages of at least $10 million for Defendants' fraudulent failure to pay his medical expenses in a timely manner ("fraud claim"). After motions for reconsideration, this Court granted Defendants summary judgment on both counts, ruling that the MSP claim was time-barred and that the complaint did not sufficiently state a claim based on fraud because Manning failed to plead reliance on a material misrepresentation by Defendants. Manning appealed, and the Second Circuit held that: (1) Manning's MSP claim was not time-barred, and (2) although Manning did not sufficiently plead a fraud claim, he should be permitted to amend his complaint to allege a claim of bad-faith refusal to pay.
Following the Second Circuit's decision remanding the case to this Court, Manning filed a second amended complaint ("Complaint"), which sets forth two claims Count One of the Complaint asserts the same MSP claim alleged in the original complaint; Count Two asserts a state law claim based on Defendants' bad-faith failure to pay. UMI filed a counter-claim for indemnification in the event that it is found liable on Manning's MSP claim. UMI now moves for summary judgment on Count Two, and Niagra Mohawk moves for summary judgment on both claims. Manning moves for summary judgment on his MSP claim and to dismiss UMI's indemnity claim. UMI cross-moves for summary judgment on its indemnity claim.
II. DISCUSSION
A. Bad Faith Failure to Pay Claim
UMI argues that Count Two should be dismissed on the basis that a claim based on a bad-faith refusal to pay benefits is not a legally-cognizable claim under New York law. It further asserts that if such a claim does exist, it sounds in contract and not tort; Manning's settlement agreement with UMI therefore precludes him from asserting this claim here. In response, Manning argues that such claim does in fact exist and that it sounds in tort, not contract; therefore, Manning is not precluded from bringing the claim.
The Second Circuit affirmed that Manning cannot recover contractual damages from Defendants since those claims are within the exclusive jurisdiction of the WCB and were settled by stipulation between the parties See Manning, 254 F.3d at 400.
The Second Circuit provided Manning with an opportunity to amend his complaint to state a claim for bad-faith refusal to pay; however, it specifically noted "[t]his court does not decide whether a claim for bad faith failure to pay benefits can be maintained in this case or even whether New York law recognizes such a cause of action." Manning, 254 F.3d at 402. As the Second Circuit's opinion might suggest, New York case law is less than clear on the issue of whether a plaintiff can recover for a bad-faith failure to pay insurance benefits. After a review of the relevant case law, the Court concludes that New York does not recognize such a cause of action.
The two leading New York Court of Appeals cases on this issue both reject a claim for a bad-faith refusal to pay insurance benefits. See New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308 (Ct. Apps. 1995);Rocanova v. Equitable Life Assurance Soc'y of the U.S., 83 N.Y.2d 603 (Ct. Apps. 1994). In both cases, however, the court suggests that a plaintiff may successfully assert such a claim under very limited circumstances.
In Rocanova, the plaintiff brought suit for "illegal evasion of insurance claims payment" based on a denial of coverage under an individual disability income policy. 83 N.Y.2d at 615. After rejecting the plaintiff's claim, the court noted that a plaintiff might recover punitive damages for bad-faith handling of insurance claims under the following circumstances:
The complaint must first state a claim of egregious tortious conduct directed at the insured claimant. Only then does an alleged pattern of bad-faith conduct attain legal significance insofar as it demonstrates that a public wrong would be vindicated by the award of punitive damages. Id. at 615.
The Court of Appeals elaborated on this statement in New York University, where the plaintiff brought an action based on a denial of claims under a commercial crime insurance policy. There, the court acknowledged that punitive damages may be recovered when a claim arises from a breach of contract under the following conditions:
(1) defendant's conduct must be actionable as an independent tort; (2) the tortious conduct must be of the egregious nature set forth in Walker v. Sheldon, 10 N.Y.2d 401, 404-405, 223 N.Y.S.2d 488, 179 N.E.2d 497 ; (3) the egregious conduct must be directed to plaintiff; and (4) it must be part of a pattern directed at the public generally. 87 N.Y.2d at 316.
Although the New York University court stated that "the threshold task for a court considering [a] defendant's motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract," it recognized that certain contractual obligations give rise to a separate duty of reasonable care, and the breach of that duty may give rise to a tort claim. Id. Thus, in certain circumstances, the breach itself can satisfy the "independent tort" requirement.
In support of this proposition, the New York University court citedSommer v. Federal Signal Corp., 79 N.Y.2d 540, 553 (1992), where the Court of Appeals held that the contractual obligations of a fire alarm company to a customer gave rise to a separate duty of care due to the strong public policy interest in protecting people and property from physical harm. Accordingly, the breach of such a contract would also constitute an independent tort, for which a plaintiff could recover punitive damages In reaching its conclusion, the Sommer court identified several relevant factors in determining whether a breach of contract can also support a claim in tort Those factors are (1) the manner of the harm, (2) the type of harm incurred, and (3) the nature of the contractual services and whether such activities are subject to independent government regulation See Sommer, 79 N.Y.2d at 553
Focusing primarily on the nature of government regulation of insurers, the New York University court ultimately held that the contractual obligation of the insurance earner to the insured did not give rise to a duty of care separate and apart from its duty to perform the contractSee 87 N.Y.S.2d at 317-18. The court acknowledged the existence of state laws mandating that insurers deal fairly with their insureds, however, it noted that such laws do not give rise to a private cause of action and that "governing the conduct of insurers and protecting the fiscal interests of insureds is simply not in the same league as the protection of the personal safety of citizens." Id.
As discussed above, both New York University and Rocanova recognize a tort claim in certain actions arising out of a breach of contract; however, the standard for such claims is "a strict one" and such a remedy is rarely available. Rocanova, 83 N.Y.2d at 613. Although several courts have recognized the importance of ensuring the fair distribution of medical benefits see, e.g., Batas v. Prudential Ins. Co., 724 N.Y.S.2d 3 (1st Dep't 2001); DeMarco v. Federal Ins. Co., 472 N.Y.S.2d 464 (3rd Dep't 1984), this Court finds that New York case law precludes recognition of such a claim. Rocanova squarely rejected a cause of action "for illegal evasion of insurance claims payment" and held that "[a] complaint does not state a claim for compensatory or punitive damages by alleging merely that the insurer engaged in a pattern of bad-faith conduct." Moreover, New York University specifically held that providing insurance is not the type of service that gives rise to a tort claim. See 87 N.Y.2d 308. That court pointed to the difference in regulatory schemes between fire regulations and regulations governing the conduct of insurers, noting the lack of a private right of action for a breach of insurance regulations. See Rocanova, 83 N.Y.2d at 614; New York University, 87 N.Y.2d at 317-18. Where, as here, "the statute does not permit a private right of action in favor of an insured, a fortiori, it cannot be construed to impose a tort duty of care flowing to the insured separate and apart from the insurance contract."New York University, 87 N.Y.2d at 318.
The Second Circuit referred this Court to Batas and DeMarco, suggesting that a plaintiff may recover on a claim for bad-faith refusal to pay insurance benefits under New York law See Manning, 254 F.3d at 402 n. 13 In Batas, the First Department indicated that an insured should have an adequate remedy to redress an insurer's bad-faith refusal of benefits, but ultimately found that the plaintiff suffered no actual injury to support such a claim. See 724 N.Y.S. 2d at 7-8 In DeMarco, the Third Department found that "[d]efendant's persistent, protracted refusal to make payments of authorized or ordered benefits, its dilatory tactics, harassment and arbitrary rejection of requests for authorization for treatment" could support a claim for intentional tort or fraudulent breach of an insurer's duty of good faith and fair dealing. 472 N.Y. So.2d at 464
Although Batas and DeMarco suggest that a claim for bad-faith refusal to pay insurance benefits may lie under New York law, this Court does not find those cases dispositive. DeMarco, a decision by the Third Department, was decided prior to the Court of Appeals cases New York University and Rocanova and therefore is not controlling. Batas ultimately found that the plaintiffs failed to allege any injury in their complaint, see 724 N.Y.S.2d at 7-8; therefore, its suggestion that "an insured should have an adequate remedy to redress an insurer's bad faith refusal of benefits" is rendered mere dicta. Moreover, the Batas majority declined to adopt "the dissent's new cause of action for tortious breach of the implied covenant of good faith " Id at 7 In light of New York University and Rocanova, Batas appears to be either an outlier or a new development in the law.
For these reasons, this Court joins other courts in this district in rejecting a claim for bad-faith payment of benefits under New York law.See, e.g., Continental Information Systems Corp. v. Federal Ins. Co., 2003 WL 145561 (S.D.N.Y. Jan. 17, 2003); Sichel v. Unum Provident Corp., 230 F. Supp.2d 325, 328-29 (S.D N.Y. 2002); Brown v. Paul Revere Life Ins. Co., 2001 WL 1230528, at *4-5 (S.D N.Y. Oct. 16, 2001). Accordingly, UMI's motion for summary judgment on this issue is granted, and Manning's claim of bad-faith refusal to pay is dismissed.
Both Manning and UMI cite Acquista v. New York Life Ins. Co., 285 A.D.2d 73 (1st Dep't 2001), in support of their respective arguments. In Acquista, the First Department held that a plaintiff can recover extracontractual damages for a bad-faith breach of a disability insurance contract. 285 A.D.2d at 82. Courts in this district have heldAcquista to be contrary to prevailing Court of Appeals case law, and therefore not controlling. See, e.g., Brown, 2001 WL 1230528, at *5;Continental Information Sys. v. Fed. Ins. Co., 2003 WL 145561, at *3. Moreover, to the extent that Acquista recognizes recovery for extracontractual damages for a failure to pay insurance benefits, it makes clear that such a claim sounds in contract, not tort See id Therefore, any claim recognized in Acquista would be unavailable to Manning.
B. MSP Claim
The Complaint alleges that both UMI and Niagra Mohawk are liable for double damages under the MSP statute Manning has moved for summary judgment against UMI, and UMI has cross-moved for summary judgment against Manning on this claim Niagra Mohawk has also moved for summary judgment on Manning's MSP claim. 1. Plantiff's Claim Against UMI
Manning moves for summary judgment on Count One, which alleges that he is entitled to recovery under the MSP statute, which provides a private cause of action against entities designated as primary payers that wrongfully withhold payment for medical costs when those costs are paid by Medicare. See 42 U.S.C. § 1395y(b)(3)(A). Manning claims that Defendants were responsible for his medical expenses from July 6, 1992 to July 6, 1998, and that these expenses were borne by Medicare as a result of Defendants' failure to pay. He thus argues that he is entitled to damages of two times $172,951.93, the amount of his medical expenses that were wrongfully borne by Medicare.
UMI has cross-moved for summary judgment dismissing Manning's MSP claim. UMI argues that (1) the medical expenses paid by Medicare were not causally related to his 1962 fall; and (2) if these expenses were causally related to his 1962 fall, UMI is entitled to indemnification based on its settlement agreement. For the reasons stated below, UMI's motion for summary judgment is denied and Manning's motion is granted. The Court addresses UMI's indemnification claim in Part C, infra.
Under the Medicare Secondary Payer Act, certain insurers are designated as primary payers for medical services for their insureds. 42 U.S.C. § 1395y(b)(2)(A). The statute designates Medicare as the secondary payer with a right of recoupment from the primary payer. See id. To encourage timely payment of covered medical expenses, Congress authorized a private cause of action and double damages against primary payers when covered expenses are paid for by Medicare. See 42 U.S.C. § 1395(b)(3)(A). The statute provides the government with both an independent right of action and a subrogation right to a private citizen's recovery of such funds. See 42 U.S.C. § 1395y(b)(2)(B)(ii) — (iii).
In order to prevail on a motion for summary judgment, the moving party must establish that there are no genuine issues of material fact and that judgment is warranted as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Facts, and all inferences therefrom, must be viewed in a light most favorable to the non-moving party Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U S. 574, 586 (1986): American Cas. Co. v. Nordic Leasing Inc., 42 F.3d 725, 728 (2d Cir. 1994). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial Anderson, 477 U S at 250
Here, UMI has failed to raise a genuine issue of material fact UMI's only dispute with respect to Manning's MSP claim is its contention that the expenses paid by Medicare were not related to Manning's 1962 fall. Thus, according to UMI, these injuries were not work-related and are not covered by Manning's workers' compensation insurance
In support of its summary judgment motion, Manning has submitted various correspondence between his attorney and the government On January 17, 2001, Manning's counsel Rajan Sharma wrote a letter to Deborah Diaz, the Worker's Compensation Recovery Representative in the Medicare Secondary Payer division at United Government Services, which has been designated by Medicare's regional officer in New York as the lead fiscal intermediary for handling all aspects relating to Manning's MSP claim (See Sharma Decl. Ex. A) The letter states, in part "this letter is to request the payment summaries for all of Medicare's conditional payments on behalf of Robert Manning from July 6, 1992 to the present from his contractors " (Id) The following documents from various Medicare fiscal intermediaries supplement this letter: (1) document entitled "Summary of Accident-Related Hospital Charges" from United Government Services; (2) document from CIGNA, entitled "Accident Related Claims: Payment Summary; (3) document from Upstate Insurance, entitled `Payment Summary Form"; (4) document from National Heritage Insurance Company, entitled "Summary of Accident-Related Medical Expenses"; and (5) document from Empire Medicare Services, entitled "Conditional Payment Amount." (See Sharma Decl. Ex.'s B-F). The sum of the amounts listed in these documents is $172,951.93.
Because Manning has borne his initial burden of showing the absence of a factual dispute, UMI must present specific facts showing that there is a genuine issue for trial. See Gummo v. Vill of Depew, 75 F.3d 98, 107 (2d Cir. 1996); Fed.R.Civ.P. 56(e). UMI submits no evidence contradicting the information contained in the documents setting forth the conditional payments made by Medicare. Although UMI asserts that Manning must submit expert evidence to support his MSP claim, it offers no support for this assertion beyond a case in the Eastern District of Pennsylvania involving violations of the Labor Management Relations Act, an act separate and distinct from the Medicare Secondary Payer Statute. (See UMI Mem. of Law in Opposition to Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment, at 5 (citing Ferris v. Pa. Fed'n Bhd. of Maintenance of Way Employees, 153 F. Supp.2d 736, 746 (E.D. Pa. 2001))). Although UMI disputes the causal relationship between the expenses paid by Medicare and Manning's work-related accident, a non-moving party "may not rely on conclusory allegations or unsubstantiated speculation" to establish an issue of fact for summary judgment Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
The Court finds that Manning has produced undisputed evidence that Medicare has determined that the relevant expenses were related to Manning's 1962 accident and were therefore made as "conditional payments." Because the Court finds that Manning has sufficiently proven that there is no genuine issue of disputed material fact, his summary judgment motion is granted with respect to Count One of the Complaint.
2. Manning's MSP Claim Against Niagra Mohawk
Niagra Mohawk argues that Manning's MSP claim against Niagra Mohawk should be dismissed because it is not a primary payer under the MSP statute. For the foregoing reasons, the Court agrees with Niagra Mohawk and dismisses Count Two of the Complaint as against Niagra Mohawk.
The MSP statute establishes a private cause of action for damages "in the case of a primary plan which fails to provide for primary payment . . ." 42 U.S.C. § 1395y(b)(3)(A). As the Fifth Circuit has noted, "[t]he term `primary plan' is pivotal to the applicability of the MSP statute — its reimbursement provisions are not triggered unless a Medicare recipient's source of recovery meets the definition of `primary plan'" Thomas v. Goetzmann, 337 F.3d 489, 497 (5th Cir. 2003). A primary plan is defined as "a group health plan or large group health plan, to the extent that clause (i) applies, and a workmen's compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan) or no fault insurance" 42 U.S.C. § 1395y(b)(2)(A).
The Court finds no evidence in either the statute or in the caselaw suggesting that a "primary plan" includes an employer that has contracted with an insurance earner to provide workers' compensation coverage to its employees. For this reason, the Court finds that Niagra Mohawk is not a suable entity with respect to Manning's MSP claim. Thus, Court Two of the Complaint is dismissed with respect to Niagra Mohawk.
C. Indemnification
Both parties have moved for summary judgment on UMl's cross-claim for indemnification. UMI argues that, in the event that it is held liable under the MSP statute, it is entitled to indemnification from Manning for Manning's failure to repay Medicaid from the settlement funds. Manning argues that (1) UMI fails to state an indemnification claim, and (2) medical expenses conditionally paid by Medicare were not included in the settlement agreement.
Medicare regulations provide that "[i]f the beneficiary or other party receives a third party payment, the beneficiary or other party must reimburse Medicare within 60 days " 42 C F R § 411.24(h) This obligation applies whether the third-party payment comes from a settlement or stipulation agreement or compromise of a workers' compensation claim See United States v. Sosnowski, 822 F. Supp. 570, 573 (W.D.Wis. 1993). Because Medicare's right of recovery against the insurer is not precluded by the insurer's settlement payment to the beneficiary, an insurer can sue the beneficiary for indemnification if it is ordered to make such payment pursuant to an MSP claim See Health Ins. Ass'n v. Shalala, 23 F.3d 412, 418 n 4 (D C Cir 1994) The Court therefore finds that UMI has sufficiently stated a claim for indemnification
Having concluded that UMI has sufficiently stated a claim for indemnification; the Court must next determine whether there is a genuine issue of fact with respect to the terms of the settlement agreement UMI's indemnification claim is based on the premise that the settlement agreement included claims for Manning's medical expenses that were paid for by Medicare Manning disputes UMI's assertion that the settlement agreement included those expenses
In evaluating the settlement agreement, the Court applies general principles of contract law. See Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) ("settlement agreements are contracts and must therefore be construed according to general principles of contact law") (internal citations and quotation marks omitted). Accordingly, summary judgment will be granted only where the settlement agreement is unambiguous. See Alexander Alexander Serv., Inc. v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82 (2d Cir. 1998) ("only where the language and the inferences that can be drawn from it are unambiguous may a district court construe a contract as a matter of law and grant summary judgment accordingly") (emphasis in original) (internal citations and quotation marks omitted). A contract is unambiguous where "the terms of the contract could suggest `more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business'"Id. (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir 1997).
The Stipulation states several times that it resolves all those claims that have arisen or could have arisen within the exclusive jurisdiction of the Workers' Compensation Board ("the Board"). (See Stip. at 2, 4, 5). UMI's argument that Manning's MSP claim falls within the exclusive jurisdiction of the Workers' Compensation Board is unavailing. Indeed, UMI has not made an argument that this Court lacks jurisdiction over Manning's MSP claim. This Court's jurisdiction over Manning's MSP claim belies UMI's assertion that Manning's claim for expenses paid by Medicare fall within the exclusive jurisdiction of the Board. The fact that Manning's MSP claim was not within the exclusive jurisdiction of the Board indicates that it was not within the scope of the agreement
Manning's position that his MSP claim was not resolved by the Stipulation is further supported by the clause stating: "Mr. Manning believes that he may have claims against UMI that arise under state or federal law and that are not within the exclusive jurisdiction of the Board." The Court notes, however, that the next clause in the Stipulation states: "UMI does not believe that Mr. Manning has any claims against it that arise under either state or federal law and that are not within the exclusive jurisdiction of the Board," indicating that UMI believed that Manning's MSP claim was resolved by the Stipulation.
Further ambiguity is found in paragraph 7 of the Stipulation, which states "Mr. Manning represents and warrants that he is unaware of any medical expenses causally related to his accident on February 27, 1962 that were reasonably incurred from February 27, 1962 to and including June 23, 1997 that have not been paid " This clause could be understood to mean that Manning was unaware of any medical expenses that were not covered by the Stipulation, including those originally borne by Medicare, which would support UMI's assertion that those expenses were within the scope of the Stipulation. However, the clause could also be read to indicate that Manning was unaware of any medical expenses that had not been paid by anyone and therefore remain outstanding
Due to the foregoing ambiguities m the Stipulation, the Court finds that a genuine issue of material fact exists as to whether the medical expenses borne by Medicare were included within the scope of the Stipulation Therefore, the Court denies both parties' motions for summary judgment on this issue
III. CONCLUSION
For the foregoing reasons, Niagra Mohawk's motion for summary judgment is GRANTED in its entirety; UMI's motion for summary judgment on Count Two is GRANTED; Manning's motion for summary judgment on Count One is GRANTED as to UMI; and UMI's cross-motion for summary judgment on Count One is DENIED. The Court further finds that there is a triable issue of fact with respect to UMI's indemnity claim; therefore, both UMI's and Manning's motions for summary judgment/judgment on the pleadings on this claim are DENIED.
SO ORDERED.