New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2006-033-220, Claim No. 109686, Motion Nos. M-71286, CM-71698


Synopsis



Case Information

UID:
2006-033-220
Claimant(s):
EARL WILSON
Claimant short name:
WILSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):
THE STATE OF NEW YORK
Third-party defendant(s):
ST. PAUL TRAVELERS INSURANCE COMPANY
Claim number(s):
109686
Motion number(s):
M-71286
Cross-motion number(s):
CM-71698
Judge:
James J. Lack
Claimant’s attorney:
Morici & Morici
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:
Lazare, Potter, Giacovas & Kranjac, LLPBy: Nadja Schulz, Esq.
Signature date:
December 29, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Earl Wilson (hereinafter “claimant”) based upon the alleged negligence of the State of New York (hereinafter “Defendant”). The claim is based upon an incident which occurred on May 12, 2004, at Stony Brook University, Stony Brook, New York. Claimant was on a ladder and fell.

Claimant worked for ACC Construction Corp. (hereinafter “ACC”). ACC contracted with the State to perform work at the University. The contract provides for ACC to purchase liability insurance.


Defendant began a third-party action against St. Paul Travelers Insurance Company (hereinafter “Travelers”) the insurance company from which ACC purchased a liability policy. Defendant now moves, pursuant to Court of Claims Act §9(-a), for an order declaring that ACC must defend and indemnify the State in the underlying action[1]. According to the State, ACC was to purchase and maintain an insurance policy naming the State as an additional insured party. The State provides a copy of the agreement as a supporting exhibit (Exhibit A). In addition, the State furnished a copy of the certificate of insurance from USI Northeast, Inc., an insurance broker, which names the State as an additional insured.

Travelers opposes the motion and cross-moves to dismiss the third-party action[2]. Travelers argues that the State is not a covered additional insured party on the policy which ACC purchased. Travelers provides a copy of the insurance policy purchased by ACC (Travelers’ Exhibit A). Travelers states that while the State is not specifically named as an additional insured, it could have still been covered if the agreement between ACC and the State required the State to be named as an additional insured. Travelers argues that agreement does not require ACC to purchase liability insurance naming the State as an additional insured.

In Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198, a similar situation occurred. A certificate of insurance existed which named plaintiff as an additional insured but the insurance policy did not contain plaintiff as an additional insured party. The court held a “certificate of insurance is only evidence of a carrier's intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists” (at p. 200).

A party claiming insurance coverage has the burden of proving that such coverage actually exists (Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337).

After examining the documents offered by the parties, the State has failed to meet its burden of proving insurance coverage exists for it. The certificate of insurance, as stated above, is not proof that insurance coverage exists. Clearly, in examining the insurance policy, the State is not an additional named insured. However, as indicated by Travelers, that does not preclude the State from being an additional named insured. The insurance policy (Travelers’ Exhibit A) states that if any contract requires any other party to be an additional insured then the Travelers’ policy would cover it. In examining the agreement between ACC and the State, there is no requirement for the State to be named as an additional insured.[3] As nothing in the agreement required the State to be named as an additional insured, the policy does not cover the State as an “automatic additional insured”.

In addition to the above, Travelers asks the Court to dismiss the third party claim based upon the untimely nature in which it was notified by the State of the lawsuit. As stated above, the accident occurred on May 12, 2004. A claim for damages was served upon the State on August 9, 2004 and an amended claim was served on or about August 16, 2004.[4] The State served its answer on September 14, 2004. This Court held its first conference in regard to this matter on January 26, 2005. At that time, the Court directed claimant and defendant to exchange document discovery and to conduct depositions by June 30, 2005. There was no indication by defendant’s counsel that there was a possibility of an insurance company assuming the defense on behalf of the State. If such a representation had been made, the Court would have adjourned the conference to allow for the substitution of defense counsel, which is the routine practice for this Court.[5] On May 10, 2005, an investigator employed by defendant sent Travelers an initial contact letter concerning this matter (Travelers’ Exhibit C-4). Travelers denied coverage on May 19, 2005 (Travelers’ Exhibit C-4).

Travelers argues that, assuming arguendo that the Court finds that the insurance policy applies, the State failed to timely notify it of the lawsuit pursuant to the contract. The State argues that Travelers should not be allowed to deny coverage based on its failure to deny said coverage in a timely manner.

The argument presented by the State as to Travelers timeliness in denying coverage is frivolous and devoid of merit. Travelers denial of coverage is dated nine days after the State’s letter requesting coverage.

In comparison, the State’s notification to Travelers about the lawsuit was:
Given the circumstances of this matter, the State’s notification to Travelers was untimely and Travelers denial of insurance coverage was justified pursuant to the policy.


Based upon the foregoing, the State’s motion for a declaratory judgment is denied and Travelers’ cross-motion to dismiss the third-party action is granted.


December 29, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated February 7, 2006 and filed February 10, 2006; Affirmation in Support of Todd A. Schall, Esq. with annexed Exhibits A-E dated February 7, 2006 and filed February 10, 2006.

[2].The following papers have been read and considered on third-party defendant’s cross-motion: Notice of Cross-Motion dated May 10, 2006 and filed May 11, 2006; Affirmation of Nadja Schulz, Esq. in Opposition to the State of New York’s Motion for Summary Judgment and in Support of the Travelers Indemnity Company and the Travelers Property Casualty Company of America’s Motion for Summary Judgment with annexed Exhibits A-H dated May 10, 2006 and filed May 11, 2006; Affidavit of Pamela Burke in Opposition to the State of New York’s Motion for Summary Judgment and in Support of the Travelers Indemnity Company and the Travelers Property Casualty Company of America’s Motion for Summary Judgment sworn to May 9, 2006 and filed May 11, 2006; The Travelers Indemnity Company and the Travelers Property Casualty Company of America’s Memorandum of Law in Opposition to the State of New York’s Motion for Summary Judgment, and in Support of its Cross-Motion for Summary Judgment or, in the Alternative, to Sever dated May 10, 2006 and received on May 11, 2006; Reply Affirmation in Further Support of Motion and in Opposition to Cross-Motion of Todd A. Schall, Esq. with annexed Exhibits A-G dated August 2, 2006 and filed August 3, 2006; Reply Affirmation of Nadja Schulz, Esq. in Further Support of the Travelers Indemnity Company and the Travelers Property Casualty Company of America’s Motion for Summary Judgment or, in the Alternative, to Sever dated August 21, 2006 and filed August 24, 2006; The Travelers Indemnity Company and the Travelers Property Casualty Company of America’s Reply Memorandum of Law in Further Support of its Motion for Summary Judgment or, in the Alternative, to Sever dated August 21, 2006 and received August 24, 2006.
[3].In §5.06(1)(e), there is a requirement that the State be an additional insured as to asbestos removal. This is not the situation presented to the Court.
[4].This is based upon the date the amended claim was filed in the Clerk’s office.
[5].The Court does this to allow the attorney who may ultimately defend the case at trial to conduct their own discovery pursuant to their theories of the defense.