New York State Court of Claims

New York State Court of Claims

CORDEIRO v. THE STATE OF NEW YORK, #2009-033-357, Claim No. 114619, Motion Nos. M-76343, CM-76529


Synopsis



Case Information

UID:
2009-033-357
Claimant(s):
JOSE CORDEIRO
Claimant short name:
CORDEIRO
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):
HUDSON INSURANCE GROUP, HUDSON INSURANCE COMPANY and HUDSON SPECIALTY INSURANCE COMPANY
Claim number(s):
114619
Motion number(s):
M-76343
Cross-motion number(s):
CM-76529
Judge:
James J. Lack
Claimant’s attorney:
Law Offices of Lawrence P. Biondi
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: John J. Shields, Assistant Attorney General
Third-party defendant’s attorney:
White, Fleischner & Fino, LLPBy: Nathan Losman, Esq.
Signature date:
September 21, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim brought by Jose Cordeiro (hereinafter “claimant”) based upon the alleged negligence of the State of New York (hereinafter “State”). The claim is based upon an incident which occurred on October 9, 2007, on the Meadowbrook Parkway Bridge over Sloop Channel, near Jones Beach State Park, Wantagh, New York. Claimant was cut by a table saw while engaged in work at this location.


Claimant worked for Liberty Maintenance (hereinafter “Liberty”). Liberty was a sub-contractor to J&K Painting (hereinafter “J&K”). J&K contracted with defendant to remove lead and paint on seventeen bridges in Nassau and Suffolk Counties. The agreement provides for J&K to purchase liability insurance.

Defendant began a third party action against Hudson Insurance Company[1] (hereinafter “Hudson”) the insurance company from which J&K purchased a liability policy. Defendant moves, pursuant to Court of Claims Act §9-a[2], for an order declaring Hudson must provide the State with a defense in the underlying action. According to the State, the agreement was that J&K 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).

Hudson opposes the motion and cross-moves to dismiss the third-party action[3]. Hudson argues bodily injury to employees of any insured, contractor or sub-contractor in the course of their employment was excluded from coverage. In support of its position, Hudson relies on Bassuk Bros. Inc. v Utica First Ins. Co. 1 AD3d 470.

In Bassuk, the insurance company issued a general liability insurance policy which excluded bodily injury to an employee of an insured if it occurs in the course of employment. An employee of the insured was injured in the course of his employment and sued the manager of the property. The Court held
An exclusion from coverage "must be specific and clear in order to be enforced" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311[1984]), and an ambiguity in an exclusionary clause must be construed most strongly against the insurer (see Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361[1974]). However, an unambiguous policy provision must be accorded its plain and ordinary meaning (see Sanabria v American Home Assur. Co., 68 NY2d 866 [1986]), and the court may not disregard the plain meaning of the policy's language in order to find an ambiguity where none exists (see Acorn Ponds v Hartford Ins. Co., 105 AD2d 723, 724 [1984]).

at 471. The court found the plain meaning to be clear: there was no coverage to any insured or additional insured for bodily injuries for employees engaged in their employment.

In opposition to the cross-motion, defendant argues that this coverage is a unilateral change in insurance to the insurance to be provided by J&K. As the contract between defendant and J&K required the type of insurance being disclaimed, defendant argues there is an ambiguity in the coverage provided by Hudson. Any ambiguity should be resolved against Hudson (see Bassuk).

Defendant, unfortunately, did not get what it bargained for with J&K and is trying to assign this problem to Hudson. According to the contract between J&K and defendant, J&K was to provide liability insurance with the defendant as an additional insured. This policy was to cover the exact situation which is before the Court. However, J&K did not provide such a policy. Instead, J&K obtained a policy from Hudson which clearly and unambiguously excludes employees of any insured, contractor or sub-contractor in the course of their employment.

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


September 21, 2009
Hauppauge, New York

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




[1].Defendant also brought the action against Hudson Insurance Group and Hudson Specialty Insurance Company. Third-Party defendant maintains neither of these entities issued insurance policies in this matter. Defendant concedes neither company should be in this matter. Thus, the Court dismisses the action against Hudson Insurance Group and Hudson Specialty Insurance Company.
[2].The following papers have been read and considered on defendant’s motion: Notice of Motion for a Declaratory Judgment dated February 27, 2009 and filed March 4, 2009; Request for Declaratory Judgment of John M. Shields, Esq. with annexed Exhibits A-H dated February 27, 2009 and filed March 4, 2009.
[3].The following papers have been read and considered on third-party defendant’s cross-motion: Notice of Cross-Motion dated April 13, 2009 and filed April 13, 2009; Affirmation in Opposition to State’s Motion and in Support of the Cross-Motion of Nathan Losman, Esq. with annexed Exhibits A-D dated April 13, 2009 and filed April 13, 2009; Response to Cross-Motion of John Shields, Esq. with annexed Exhibits A-F dated May 22, 2009 and filed May 29, 2009; Affidavit in Support of Third-Party Claimant’s Response to Third-Party Defendant’s Cross-Motion of Jacqueline Smith sworn to May 21, 2009 with annexed Exhibits A-B; Reply Affirmation of Nathan Losman, Esq. with annexed Exhibits A-B dated July 1, 2009 and filed July 6, 2009; Affidavit of Peggy Killeen sworn to July 6, 2009 and filed July 6, 2009.