relieving insurer of duty to defend and duty to indemnify finding "[t]here was no ambiguity in the declarations page of the primary policy with respect to professional liability coverage"Summary of this case from Hugo Boss Fashions, Inc. v. Federal Insurance
April 25, 1995
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
The Supreme Court properly determined that defendant was relieved of its duty to defend and indemnify plaintiff in the underlying action since it demonstrated that the allegations of the complaint fell outside the scope of the coverage provided by the primary and umbrella policies issued to plaintiff. There was no ambiguity in the declarations page of the primary policy with respect to professional liability coverage since such coverage clearly only applied to the businesses enumerated which did not include travel related services such as that engaged in by plaintiff (see, Breed v Insurance Co., 46 N.Y.2d 351; Moshiko, Inc. v Seiger Smith, 137 A.D.2d 170, affd 72 N.Y.2d 945). Moreover, coverage was also properly disclaimed pursuant to exclusion F (3) of the primary policy which explicitly excluded losses such as that claimed herein, which resulted from the issuance, arrangement or amendment of a contract of insurance or the failure to so issue, arrange or amend such contract. Since the claims asserted in the underlying action were for economic loss resulting from the plaintiff's purported breach of contract, coverage was also properly disclaimed under the umbrella policy which covered only "damages because of `bodily injury' [or] `property damage' * * * [c]aused by an `occurrence'" (see, Smith Pontiac-GMC Truck Ctr. v Hartford Acc. Indem. Co., 194 A.D.2d 906).
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Tom, JJ.