Opinion
1085-1086-1087-1088-1089-1090
May 16, 2002.
Orders and judgments (one paper each), Supreme Court, New York County (Helen Freedman, J.), entered January 8, 9 and 11, 2002, upon the parties' respective motions for summary judgment, declaring in favor of insurers that they have no duty to defend defendant insured in the underlying proposed class actions, unanimously affirmed, with separate bills of costs. Appeal from order, same court and Justice, entered December 5, 2001, unanimously dismissed, without costs, as subsumed within the appeals from the orders and judgments.
Philip R. King, for plaintiff-respondent.
Jerold Oshinsky, for defendant-appellant.
Philip R. King, Richard S. Feldman Craig R. Brown, for defendants-respondents.
Lawrence H. Cooke II, for Amicus Curiae.
Before: Williams, P.J., Tom, Mazzarelli, Ellerin, Marlow, JJ.
The motion court correctly held that the underlying proposed class actions for which the insured, a distributor of cell phones, seeks a defense under its policies covering damages "because of" or "for" "bodily injury" are not claims within the coverage of the policies. This is because such actions seek only economic damages measured by the cost of headphones that allegedly would block the allegedly dangerous radiation emitted by cell phones, and, while alleging the risk of physical harm, specifically disclaim seeking recovery for anything but the cost of the headphones. In view of the foregoing, it is unnecessary to address whether any of the policy exclusions apply. We have considered appellant's other contentions and find them unavailing.
Motion seeking leave to file Amicus Curiae brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.