Summary
In Southwest Mar. & Gen. Ins. Co. v Preferred Contrs. Ins. Co, 143 AD3d 577 (1st Dep't 2016), the First Department concluded that a certificate of insurance, in conjunction with an ambiguous phrase within the form that required additional insureds to be scheduled, was relevant to whether plaintiff's exclusion from additional insured endorsements was an inadvertent error.
Summary of this case from Union Mut. Fire Ins. Co. v. PattiOpinion
10-20-2016
SOUTHWEST MARINE AND GENERAL INSURANCE COMPANY, et al., Plaintiffs–Respondents–Appellants, v. PREFERRED CONTRACTORS INSURANCE COMPANY, Defendant–Appellant–Respondent, Gilmar Design Corporation, Defendant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Eric D. Suben of counsel), for appellant-respondent. Carroll McNulty Kull LLC, New York (Ann M. Odelson of counsel), for respondents-appellants.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Eric D. Suben of counsel), for appellant-respondent.
Carroll McNulty Kull LLC, New York (Ann M. Odelson of counsel), for respondents-appellants.
SWEENY, J.P., RENWICK, MANZANET–DANIELS, WEBBER, JJ.
Orders, Supreme Court, New York County (Robert R. Reed, J.), entered April 14 and May 20, 2015, which denied defendant Preferred Contractors Insurance Company's (PCIC) motion to dismiss the complaint as against it, and denied plaintiffs' motion for summary judgment declaring that PCIC is obligated to defend and indemnify them in the underlying personal injury action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 23, 2015, to the extent that, upon reargument, it adhered to the original determination, unanimously dismissed, without costs, as academic.
PCIC, a Montana risk retention group, failed to show that the documentary evidence submitted in support of its motion to dismiss “resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff[s'] claim” (West 64th St., LLC v. Axis U.S. Ins., 63 A.D.3d 471, 471–472, 882 N.Y.S.2d 22 [1st Dept.2009] [internal quotation marks omitted] ). While the additional insured endorsements at issue do not reference plaintiffs, plaintiffs are identified on the certificates of insurance, which is relevant to whether plaintiffs' exclusion from the endorsements was perhaps an inadvertent error (Rosalie Estates v. Colonia Ins. Co., 227 A.D.2d 335, 337, 643 N.Y.S.2d 59 [1st Dept.1996] ).
Contrary to plaintiffs' contention that the policy must be construed against PCIC, as the drafter, because ambiguity is created by the appearance of the phrase “Blanket Accident Insurance” within the same form that requires additional insureds to be scheduled (see Ames Constr., Inc. v. Intermountain Indus., Inc., 712 F.Supp.2d 1160, 1166 [D.Montana 2010], affd. 445 Fed.Appx. 971, 2011 WL 3350540 [9th Cir.2011] ; Baker v. Nationwide Mut. Ins. Co., 158 A.D.2d 794, 796–797, 551 N.Y.S.2d 387 [3d Dept.1990] ), “the parties may submit extrinsic evidence as an aid in construction” (State of
New York v. Home Indem. Co., 66 N.Y.2d 669, 671, 495 N.Y.S.2d 969, 486 N.E.2d 827 [1985] ; see also New York State Ins. Fund v. Everest Natl. Ins. Co., 125 A.D.3d 536, 1 N.Y.S.3d 809 [1st Dept.2015] ; Baker v. 16 Sutton Place Apt. Corp., 72 A.D.3d 500, 501, 898 N.Y.S.2d 131 [1st Dept. 2010] ; Corporate Air v. Edwards Jet Ctr., 345 Mont. 336, 349, 190 P.3d 1111, 1121 [Mont.2008] ).