New York State Court of Claims

New York State Court of Claims

STANISLAUS v. THE STATE OF NEW YORK, #2001-019-579, Claim No. 98974, Motion Nos. M-62856, M-64113, CM-63062


State's motion for a declaratory judgment is granted; Insurance company's cross-motion for severance is denied as moot; Insurance company's application for an open commission of an out-of-state witness is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
Motion number(s):
M-62856, M-64113
Cross-motion number(s):
Claimant's attorney:
BISOGNO & MEYERSONBY: Michael C. Meyerson, Esq., of counsel
Defendant's attorney:
BY: Alan B. Berkowitz, Assistant Attorney General, of counsel
Third-party defendant's attorney:
MELITO & ADOLFSEN, P.C.BY: Amy C. Clauss, Esq., of counsel
Signature date:
December 11, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant and Third-Party Claimant State of New York (hereinafter "State") moves for a declaratory judgment pronouncing that Third-Party Defendant Investors Insurance Company of America (hereinafter "Investors") is obligated to defend the State in the underlying claim filed by Claimant Thomas Stanislaus. Investors opposes the motion and cross-moves for an order pursuant to CPLR 603 and 1010 severing this third-party claim from the underlying claim. Oral argument was held via conference call on May 10, 2001 after which supplemental submissions were requested by the Court in order to clarify both factual and legal issues. Thereafter, several joint requests for adjournments were granted,[1] although the last adjournment resulted from the tragic events of September 11, 2001. Investors also makes an application for an open commission authorizing the taking of the deposition of an out-of-state nonparty witness, Michael Culnen.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed September 16, 1998.
  2. Notice of Impleader, filed July 5, 2000.
  3. Notice of Motion No. M-62856, dated December 13, 2000, and filed December 18, 2000.
  4. Affirmation of Alan B. Berkowitz, AAG, in support of Motion No. M-62856, dated December 14, 2000, with attached exhibits.
  5. Notice of Cross-Motion No. CM-63062, dated February 7, 2001, and filed February 8, 2001.
  6. Affirmation of Amy C. Clauss, Esq., in support of Cross-Motion No. CM-63062 and in opposition to Motion No. M-62856, dated February 7, 2001, with attached exhibits.
  7. Affirmation of Alan B. Berkowitz, AAG, in opposition to Cross-Motion No. CM-63062 and in support of Motion No. M-62856, dated February 19, 2001, and filed February 21, 2001, with attached exhibits.
  8. Affidavit of Michael Culnen, in opposition to Cross-Motion No. CM-63062, sworn to February 12, 2001.
  9. Affidavit of Michael Culnen in opposition to Cross-Motion No. CM-63062 and in support of Motion No. M-62856, sworn to August 2, 2001, and filed August 8, 2001, with attached exhibits.
  10. Affirmation of Alan B. Berkowitz, AAG, in support of Motion No. M-62856, and in opposition to Cross-Motion No. CM-63062, dated August 6, 2001, and filed August 8, 2001.
  11. Affirmation of Amy C. Clauss, Esq., in opposition to Motion No. M-62856, and in support of Cross-Motion No. CM-63062, dated October 23, 2001, and filed October 24, 2001.
  12. Notice of Motion No. M-64113, dated September 6, 2001, and filed October 3, 2001.
  13. Affidavit of Amy C. Clauss, Esq., in support of Motion No. M-64113, unsworn.
  14. Application for a Commission, by Amy C. Clauss, Esq., dated August 29, 2001.

In April 1997, TPK Maria Maintenance (hereinafter "Maria") entered into a contract with the State to perform concrete deck repair and installation on five State bridges. On July 27, 1998, Claimant Thomas Stanislaus (hereinafter "Claimant"), an employee of Maria, was injured when he fell off a ladder while working on the Belt Parkway bridge which was part of the aforementioned project. Claimant commenced the underlying claim against the State alleging negligence and violations of the Labor Law. The underlying claim was filed in the Office of the Clerk on September 16, 1998 and served upon the Attorney General's office on September 17, 1998. Pursuant to the State-Maria contract, Maria was obligated to procure liability insurance naming the State as an additional insured. Maria purchased a Commercial General Liability policy (hereinafter "CGL") from Investors, as well as - or so it thought - an Owners and Contractors Protective Liability policy (hereinafter "OCP"), the details of which will be discussed hereinbelow.

Through this motion (M-62856), the State seeks to compel a defense from Investors in the underlying claim based upon said coverage, although it previously sought similar relief from a different carrier. By way of background, the State originally commenced a third-party action against United States Fidelity & Guaranty Ins. Co. a/k/a St. Paul Insurance Companies (hereinafter "USF&G") on March 31, 1999 (hereinafter "USF&G Third-Party Claim") for defense and indemnification. The USF&G Third-Party Claim was discontinued upon stipulation after USF&G established to the State's satisfaction that the USF&G policy had expired on April 15, 1998 which was prior to the subject accident.[2] Thereafter, approximately nine months later on July 5, 2000, the State commenced this second third-party action against Investors (hereinafter "Investors Third-Party Claim") seeking a defense in the underlying claim. Investors has refused to provide a defense.

When this motion was originally filed almost one year ago, the State contended that Investors had issued both an OCP policy and a CGL policy to Maria naming the State as an insured as evidenced by a Certificate of Insurance dated February 8, 1999. (Exhibit B attached to Exhibit G of Affirmation of Alan B. Berkowitz, AAG, dated December 14, 2000). However, upon oral argument, the Court questioned the validity of said Certificate of Insurance and the State undertook further investigation before submitting supplemental submissions. The State now takes the position based upon revised facts that Investors issued a CGL policy but that an OCP policy, although requested, was never issued due to agent error. As such, the State has withdrawn from consideration the Certificate of Insurance dated February 8, 1999 attached to the State's initial motion papers.[3]

The State now relies on two Certificates of Insurance dated February 23, 1998 and September 11, 1998, hereinafter "Certificate #1" and "Certificate #2", respectively. (Exhibits B & C to Affidavit of Michael Culnen sworn to August 2, 2001). On their face, these Certificates reflect the following coverage:

Date of
Certificate of Insurance Coverage Carrier Effective dates
#1 2-23-98 CGL Investors 11-10-97 to 11-10-98
OCP USF&G 4-15-97 to 4-15-98

#2 9-11-98 CGL Investors 11-10-97 to 11-10-98
OCP Investors 4-15-98 to 4-15-99

According to the State's supplemental submissions, the OCP policy listed on Certificate #2 was never actually issued by Investors due to agent error. The State submits a supplemental affidavit from Michael Culnen, President of C & H Agency, formerly known as The Turner Group, an insurance brokerage firm located in Totowa, New Jersey. Mr. Culnen avers that he ordered an OCP policy, on behalf of Maria, from Investors through its authorized agent, AGC Service Inc. (hereinafter "AGC") on an unidentified date "prior to the day of the accident". (Affidavit of Michael Culnen sworn to August 2, 2001, ¶ 4). On May 19, 1999, almost ten months after the accident, Mr. Culnen discovered that AGC had failed to place the order with Investors as requested. In other words, the State admits that Investors never actually issued an OCP policy.

From a factual standpoint, Investors concedes it issued the CGL policy reflected on Certificates #1 and #2; denies issuing the OCP policy as shown on Certificate #2; and further disputes the validity of Certificate #2 in the first instance. More specifically, Investors contends that Certificate #2 is evidence that USF&G renewed its OCP policy (as shown on Certificate #1) or, at the very least, raises questions of fact regarding that possibility for reasons that will be discussed herein. Moreover, Investors insists that its CGL policy is merely an excess policy. Investors does not admit or deny or, for that matter even address, the allegation of agent error raised in the State's supplemental submissions.

I. State's Motion for a Declaratory Judgment

a). Jurisdiction

The threshold question is whether this Court has jurisdiction over the issues presented.

The Court of Claims is granted the power to issue a declaratory judgment pursuant to Court of Claims Act (hereinafter "CCA") § 9 (9-a):
[w]ith respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in any action pending in the court of claims, provided that the court shall have no jurisdiction to enter a judgment against an insurer pursuant to this subdivision either: (i) for money damages; or, (ii) if the insurer would otherwise have a right to a jury trial of the controversy with respect to which the declaratory judgment is sought.

In other words, this Court does not have jurisdiction to either enter a money judgment in connection with a declaratory judgment or to make a declaratory judgment in the first instance if the insurer otherwise has the right to a jury trial. An insurer's entitlement to a jury trial in the context of a declaratory judgment has been addressed in the Court of Claims.[4] (Sangirardi v State of New York, 152 Misc 2d 423; Dennis v New York State Thruway Authority, Ct Cl., October 28, 1998, Ruderman, J., Claim No. 96628, Motion No. M-58028, Cross-Motion No. CM-58100). However, the right to a jury trial is contingent upon a request or it is waived. (CPLR 4102). Here, this Court has the jurisdiction to determine this matter because Investors has not demanded a jury trial.

b). Duty to Defend

The substantive issue presented is whether Investors has a duty to defend the State in the underlying claim. The duty to defend is commonly described as broad in nature. (Sea Crest Constr. Corp. v Centennial Ins. Co., 175 AD2d 453, 454). The proper test to ascertain whether the duty to defend is triggered is in the pleadings or, stated another way, "[s]o long as the claims, even though predicated on debatable or even untenable theory, may rationally be said to fall within policy coverage, whatever may later prove to be the limits of the insurer's responsibility to pay, there is no doubt that it is obligated to defend [citation omitted]." (Schwamb v Fireman's Ins. Co. of Newark, N.J., 41 NY2d 947, 949). Moreover, it is well-settled that:
[a]n insurer denying a duty to defend has the burden to establish as a matter of law on a summary judgment motion that the injury complained of falls outside the coverage of the policy or that claims against the insured are unambiguously exempted from coverage [citation omitted].

(Munzer v St. Paul Fire & Mar. Ins. Co., 145 AD2d 193, 198; see also, Seaboard Sur. Co.

Gillette Co.
, 64 NY2d 304, 310; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876). Stated another way, here "[t]he burden of proof rests on the insurer claiming to have no duty to defend (see, Sea Crest Constr. Corp. v Centennial Ins. Co., 175 AD2d 453, 454)." (United States Fid. and Guar. Co. v U.S. Underwriters Ins. Co., 194 AD2d 1028, 1029).

The State contends that it is entitled to a defense from Investors based on the following arguments: (1) the mere issuance of Certificate #2 equates to a temporary contract of insurance even without the issuance of an OCP policy; (2) that Certificate #2 serves to estop Investors from denying coverage; and (3) assuming, arguendo, the lack of OCP coverage, Investors is obligated to provide a defense based upon the CGL policy undisputably in effect on the date of the subject accident.

For its part, Investors admits it issued a CGL policy to Maria with the State as a named insured, but denies issuing any OCP policy. More specifically, Investors makes a three-fold argument in opposition to the State's motion for a declaratory judgment: (1) Investors did not issue an OCP policy to Maria's; (2) a Certificate of Insurance is not the equivalent of an insurance binder and/or policy; and (3) Investors duty to defend under the CGL policy, as an excess policy, is not triggered without a coexistent OCP policy.

1. OCP Coverage

A. Did Investors issue an OCP policy?

Investors denies it issued an OCP policy. The State concedes this fact, but argues that said omission was only because of Investors' agent's error. In short, there does not appear to be any real dispute regarding the inescapable conclusion that Investors did not issue an OCP policy to Maria be it due to agent error or otherwise. The parties do, however, disagree sharply on the consequences of said failure relative to the issuance of certificates of insurance in general and the existence of Investors' CGL policy to be discussed hereinafter.

B. Did USF&G issue an OCP policy?

While denying its own issuance of an OCP policy, Investors still argues there is a question of fact about whether USF&G renewed its OCP policy from the year immediately preceding this accident as reflected on Certificate #1. First, Investors asserts that Certificate #2 "[d]oes not list a valid Investors policy number." (Supplemental Affirmation in Opposition, ¶ 5). Second, Investors points to the sequential nature of the OCP policy numbers as listed on Certificates #1 and #2.[5] More specifically, Investors argues that the successive sequence of the policy number on Certificate #2 [policy number "041598-1A"] compared to Certificate #1 [policy number "041597-1A"] demonstrates that USF&G actually renewed its earlier OCP policy, despite the Stipulation of Discontinuance of the USF&G Third-Party Claim to the contrary. (Exhibit 3 to Affirmation of Amy C. Clauss, Esq.). Although Investors does not submit an affidavit from someone with first-hand knowledge of the policy numbering scheme of either Investors or USF&G, the State offers nothing in response to this assertion. While on their face it does appear that these policy numbers are sequential, they also appear to be a condensed version of the effective date of coverage.[6] However, without more this Court cannot ascertain whether such a numbering scheme is unique to USF&G; standard within the industry; or a mistaken entry.

In sum, with respect to the existence of any OCP policy, there is no question but that Investors did not issue an OCP policy, although Investors has raised a question of fact as to whether USF&G renewed its earlier OCP policy.

2. Certificate of Insurance

The parties take sharply divergent views of Certificate #2. Initially, the Court notes that this "certificate of insurance" is a form prepared by the State Department of Transportation. (Zurich Ins. Co. v White, 221 AD2d 700, lv denied 88 NY2d 804). The State describes a certificate of insurance as the equivalent of a binder, thereby creating a temporary contract of insurance. While it is generally accepted "[t]hat an insurance binder is a temporary or interim policy until a formal policy is issued [citations omitted]", (Springer v Allstate Life Ins. Co. of N.Y., 94 NY2d 645, 649), and is a separate and distinct contract from the insurance policy itself the State offers nothing supporting the position that the terms "certificate of insurance" and "binder" are interchangeable. In opposition, Investors argues that certificates of insurance are not temporary insurance binders, but that such certificates are considered "matters of information only and generally confer no rights upon the Certificate holder." (Supplemental Affirmation in Opposition, ¶ 6). However, the case cited by Investors is distinguishable from the facts at hand since the certificate of insurance under scrutiny in that case contained specific limiting language such as "'a matter of information only and confer[red] no rights upon' [the plaintiff]". (American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 423; see also, McGill v Polytechnic Univ., 235 AD2d 400, 402). Here, the Certificate of Insurance does not contain such limiting language.[7]Additionally, these Certificates contain a clause indicating that "[p]olicy coverage MUST agree with coverage stated on this Certificate." (Exhibits B and C to Affidavit of Michael Culnen sworn to August 2, 2001).

It is well-settled that a certificate of insurance is evidence of an agreement to provide coverage, "[b]ut it is neither conclusive proof of the existence of such a contract nor, in and of itself, a contract to insure plaintiff [citations omitted]." (Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., 151 AD2d 207, 210; see also, Morrison-Knudsen Co. v Continental Cas., 181 AD2d 500; Buccini v 1568 Broadway Assocs., 250 AD2d 466, 469). Moreover, on a summary judgment motion, such as here, a certificate of insurance "[i]s not sufficient, standing alone as it does here to prove coverage as a matter of law." (Horn Maintenance Corp. v Aetna Cas. & Sur. Co., 225 AD2d 443, 444). As such, neither Certificate #1 nor Certificate #2 is sufficient to establish coverage in the case at hand.

Additionally, on the subject of these certificates of insurance, it warrants mentioning that Certificate #2 is dated September 11, 1998, almost 1 ½ months after the underlying accident. The State acknowledges this fact but Mr. Culnen avers that "[a]lthough this certificate was prepared after the date of the accident, it was prepared at such a time before we were aware of an error committed by the agent of Investors Insurance-AGC Services." (Affidavit of Michael Culnen sworn to August 2, 2001, ¶ 3).

In view of the foregoing, this Court finds that Certificate #2, standing alone, is insufficient to establish OCP coverage by Investors as a matter of law.

3. Equitable Estoppel

The State further argues that the doctrine of equitable estoppel should be applied against Investors preventing it from denying coverage due to the existence of Certificate #2 "[g]iven to them by Investor's [sic] agent". (Affirmation of Alan B. Berkowitz, AAG, dated August 6, 2001; ¶ 9). Investors does not respond to this argument. Nevertheless, it is well-settled that the doctrine of equitable estoppel cannot be used to create coverage where no policy exists in the first instance. (Penske Truck Leasing Co. v Home Ins. Co., 251 AD2d 478; Taft v Equitable Life Assur. Socy. of U.S., 173 AD2d 267; Chrapa v Johncox, 60 AD2d 55, lv dismissed 44 NY2d 836). Here, Investors never issued an OCP policy. It appears that the cases cited by the State involved situations where the insurance company had actually issued a policy, but a discrepancy arose between the certificate of insurance and the policy itself. (Zurich Ins. Co. v White, supra, 221 AD2d, at 703 [contradiction between certificate of insurance and policy relative to deductible clause; court found issuance of certificate of insurance containing no deductible clause was sufficient to apply estoppel doctrine preventing company from asserting deductible clause located in policy]; Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., supra, 151 AD2d 207 [certificate of insurance amended to include additional insured, but policy never amended due to clerical error; insurance company estopped from denying coverage to named additional insured on certificate of insurance). This Court found no case in which equitable estoppel was applied when no policy existed in the first instance even if the lack of policy was due to agent error. Moreover, although the State describes Certificate #2 as being provided by Investors' agent, it appears that said Certificate was signed by a representative of The Turner Group, a broker for Maria, but not AGC, Investors' agent.[8] This Court cannot state at this juncture that the doctrine of equitable estoppel is applicable to the facts at hand from this record as a matter of law.

4. CGL Policy

Investors concedes that it issued a CGL policy to Maria that was in effect on the date of this accident. Investors describes this CGL policy as an excess policy. The State argues that Investors is obligated to defend pursuant to the terms of the CGL policy without regard to the existence of an OCP policy. Investors responds by arguing that its duty to defend under the CGL policy is not triggered without a coexistent OCP policy. In fact, at oral argument, this Court specifically asked both parties to brief in their supplemental submissions the issue of whether the phrases "that any other insurer has a duty to defend" or "if no other insurer defends" contained in the CGL policy's "other insurance" section mandated the existence of other insurance in the first instance. With respect to the parties supplemental submissions on this issue, Investors indicates it was unable to identify any case law on this issue, while the State does not directly address the subject.

First and foremost, in this Court's view, Investors has not satisfied its burden on this motion since:
[a] declaration that there is no obligation to defend could now properly be made only if it could be concluded as a matter of law that there is no possible factual or legal basis on which [Investors] might eventually be held to be obligated to indemnify [the State] under any provision of the insurance policy....

(Spoor-Lasher Co. v Aetna Cas. & Sur. Co., supra, 39 NY2d, at 876). In view of the fact that Investors itself raises the possibility that an OCP policy is out there if USF&G renewed its earlier policy, then this Court cannot state as a matter of law that there is no possible basis on which Investors may have to indemnify - be it drop down coverage or only for that amount in excess of the primary policy. As such, this Court declares that Investors has a duty to defend the State in the instant action.

Moreover, the Court is not convinced on this record that the CGL policy issued by Investors provides only excess coverage as asserted by Investors. First, a true excess policy expressly requires basic coverage in specific amounts. (Gladstone v Ritter Co., 133 Misc 2d 922, 927). Investors has not pointed out any such language in this CGL policy. Secondly, the CGL policy's own language states that its "other insurance" clauses are triggered "if other valid and collectible insurance is available" which does not appear to be the case. Furthermore, the policy's "other insurance-excess insurance" clause indicates that it is only excess over certain specific coverages, namely fire, extended coverage, builder's risk, installation risk, fire insurance for rented premises, loss arising out of aircraft, autos or watercraft, none of which are relevant here. In short, this Court is not convinced that this CGL policy provides only excess policy.

Parenthetically, to the extent that Investors is also asking the Court to determine at this juncture whether it is obligated to indemnify the State or, stated another way, to drop down to cover losses that may be attributable to the lack of a primary policy in the event that turns out to be the case, it is too early to do so. More specifically, Investors requests that "[i]t be entitled to a credit in the amount of the alleged limits of OCP policy to the extent that Investors is determined to provide coverage to the State." (Supplemental Affirmation of Amy C. Clauss, Esq., ¶ 10). In this Court's view, a determination relative to the obligation of Investors "[t]o indemnify its insured [under this CGL policy] would now be premature and must await the resolution of the underlying claim." (Spoor-Lasher Co. v Aetna Cas. & Sur. Co., supra, 39 NY2d, at 876).

5. Attorney's Fees

To the extent that the State's Third-Party Claim against Investors also seeks an award of attorney's fees in connection with both the Investors Third-Party Claim and the underlying claim, the Court notes that attorney's fees in connection with declaratory judgments have been rejected in the Court of Claims. (Sangirardi v State of New York, supra, 152 Misc 2d 423; CCA 27; Springer v State of New York, Ct Cl., April 30, 1999, Silverman, J., Claim No. 95038, Motion No. M-58277).

Finally, Investors seeks permission to take an open commission of an out-of-state nonparty witness, namely Michael Culnen located in New Jersey. Although the need for this deposition on the specific issue of duty to defend may now be moot it does seem likely that Mr. Culnen may have material and necessary information relative to other issues, such as the indemnification issue that has yet to be resolved. (Morgan v Dell Publ. Co., 185 AD2d 876). As such, the Court will grant Investors application for an open commission.

Accordingly, for the reasons stated above, it is ORDERED that the State's Motion for a Declaratory Judgment, Motion No. M-62856, is GRANTED and the Court declares that Investors has a duty to defend the State in the instant action; that Investors' cross-motion for severance, Cross-Motion No. CM-63062 is DENIED; and Investors' motion for an open commission, Motion No. M-64113, is GRANTED. Finally, the Court notes that it previously reserved the Claimant's right to make a dispositive motion within 60 days following the date of filing of this Decision and Order in the Office of the Clerk and reiterates here Claimant's right to do so. The Clerk of the Court is directed to enter judgment accordingly.

December 11, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The State originally filed its motion on December 18, 2000. An original return date of February 14, 2001 was scheduled, then adjourned for oral argument scheduled for May 10, 2001. The return date was further adjourned to allow for time for additional investigation and supplemental submissions until August 8, 2001, with that date being adjourned to September 6, 2001; then September 20, 2001; and then ultimately October 31, 2001.
[2]The Stipulation of Discontinuance dated August 31, 1999, was filed in the Office of the Clerk on October 13, 1999.
[3]Apparently an incorrect second page was inserted as part of that original Certificate of Insurance exhibit.
[4]Courts have agreed that the most analogous cause of action to a declaratory judgment action is a breach of contract action, which is an action at law to which the right to a jury trial attaches. (Martell v North Riv. Ins. Co., 107 AD2d 948; CPLR 4101; N.Y. Const art I § 2).
[5]Investors also relied on a facsimile from Crum & Forster Insurance on April 7, 1999. (Exhibit 4 to Affirmation of Amy C. Clauss, Esq.). This argument is without merit. Said facsimile states that Crum & Forster Insurance issued an umbrella policy to Maria and contains the statement that "We have been further advised that St. Paul [a/k/a. USF&G] has assumed the defense of the State of NY under their OCP Policy." (Id.). The Court notes this facsimile is dated five months before the Stipulation of Discontinuance between the State and USF&G acknowledging that USF&G's policy had expired.
[6]For instance, Policy Number 041597-1A appears to correspond to an effective date of April 15, 1997, while Policy Number 041598-1A corresponds to an effective date of April 15, 1998.

[7]Rather, Certificates #1 and #2 both contain the following language:

[t]he subscribing insurance company, authorized to do business in the State of New York, certifies that insurance of the kinds and types and for the limits of liability herein stated, covering the work herein designated, has been procured by and furnished on behalf of the insured contractor and is in full force and effect for the period listed below.

[8]Certificate #2 is signed by "Patti Abbott-Bozzo, Acct. Exec." as "Signature of Authorized Representative", however Ms. Abbott-Bozzo appears to be an account executive with The Turner Group as shown on a separate letter. (Exhibits C & D to Affidavit of Michael Culnen, sworn to August 2, 2001).