JUAN CASASOLA and KARLA GALINDO v. THE STATE OF NEW YORK, #2009-036-538, Claim
No. 113596, Motion Nos. M-76333, M-76525, CM-76623, CM-76644
|JUAN CASASOLA and KARLA GALINDO
1 1.The caption has been amended sua sponte to reflect the only proper
JUAN CASASOLA and KARLA GALINDO
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the only proper defendant.
MELVIN L. SCHWEITZER
GORAYEB & ASSOCIATES, P.C.By: Roy A. Kuriloff, Esq.
ANDREW M. CUOMO, ATTORNEY GENERAL
By: Ellen S.
Mendelson, Esq. Assistant Attorney General
BENJAMIN & VASILATOS, LLC
By: Scott P. Benjamin, Esq.
Attorney for Defendant Eagle Two Construction, Inc.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP
By: Alice L. Brodie, Esq.
Attorney for Defendant James D. Vavas
BIVONA & COHEN P.C.
By: Elio M. DiBerardino, Esq. Attorneys for Rutgers Casualty Insurance Co.
August 26, 2009
See also (multicaptioned
This is the court’s decision with respect to (1) the motion of
third-party defendant Eagle Two Construction, Inc. (“Eagle”) to
dismiss the third-party complaint against it; (2) the cross-motion of
defendant State of New York (the “State”) for an order and
declaratory judgment declaring that Eagle is obligated to defend and indemnify
the State; (3) the motion of third-party defendant Rutgers Casualty
Insurance Company (“Rutgers”) to dismiss the third-party complaint
against it; and (4) the cross-motion of the State for an order and
declaratory judgment declaring that Rutgers is obligated to defend and indemnify
In this action claimants Juan
Casasola (“Casasola”) and his wife Karla Galindo seek to recover
damages against the State for claims under Sections 200, 240 (1) and
241 (6) of the New York State Labor Law arising out of
Casasola’s being injured on August 10, 2006 while working on a
construction project owned by the State while employed by Eagle. The State has
brought an impleader action against Eagle, Rutgers and James D. Vavas Insurance
Agency (“Vavas”). The State’s third-party claims against
Rutgers and Vavas allege that one or both of them issued an insurance policy
insuring Eagle which should provide for the State to be treated as an additional
insured. The State seeks a declaratory judgment declaring the State’s
right to be granted additional insured status. Rutgers opposes the
State’s declaratory judgment action on the basis that the policy it issued
to Eagle excludes coverage of claims by Eagle’s employees. See
. The State therefore seeks a declaratory judgment that Eagle
“is required to defend and indemnify the State of New York in the
within in the event that Rutgers . .. fails to do so.”
While generally this court does not have jurisdiction to grant equitable
relief, § 9-a of the Court of Claims Act grants this court
jurisdiction as follows:
To make a declaratory judgment as defined in section three thousand one of the
civil practice law and rules with 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.
Thus, the court has jurisdiction to render a declaratory judgment with respect
to whether an insurer is required to defend and indemnify a defendant in an
action pending in this court.
The issue presented by Eagle’s motion is whether it is deemed to be an
“insurer” within the meaning of § 9-a of the Court of
Claims Act. Several judges of this court have concluded that a contractor with
an obligation to indemnify the State is not an insurer within the meaning of
§ 9-a and that the court therefore lacked jurisdiction over the
contractor in those cases. See Sangirardi v State of New York, 152
Misc 2d 423 [Ct Cl, Weisberg J., 1991]; Lopez v State of New York, Claim
No. 84701 [Ct Cl, Silverman J., March 30, 1993]; Neely v State of New
York, Claim No. 110262, M-70981, UID No. 2006-016-028 [Marin, J., April 26,
2006]; Scott v State of New York, Claim No. 107168, M-68376, UID No.
2004-013-064 [Patti, J., December 30, 2004]. The State, however, relies upon
Gutierrez v State of New York, Claim No. 110205, M-71948, CM-72214,
CM-72220, CM-72229 and CM-72231 [Mignano, J., December 19, 2006]. In that case
Judge Mignano ruled that a contractor became an insurer not by virtue of its
duty to indemnify the defendant but due to the contractor’s decision to
act as a self-insurer. The court noted that the contractor agreed to defend the
State and to procure primary general liability coverage of $1 million from
a licensed insurance carrier, but then obtained a policy providing for
self-insurance for liability up to the $1 million requirement and retained
adjusters to handle claims. The factors Judge Mignano relied upon in
Gutierrez, however, are not present here. Eagle in fact obtained an
insurance policy as it was required to do under its agreement with the State
(albeit the policy contained an exclusion against coverage for liability to an
employee) and did not act as or consider itself to be an insurer as the
contractor did in Gutierrez. The court concludes that Eagle is not an
insurer within the meaning of § 9-a of the Court of Claims Act and the
court has no jurisdiction to grant the State declaratory relief with respect to
Eagle. The court thus grants Eagle’s motion to dismiss and denies the
State’s cross-motion for a declaratory judgment against Eagle.
The court now turns to Rutgers’ motion to dismiss and the State’s
cross-motion for declaratory relief.
The State’s third-party claim against Rutgers seeks a declaration that
Rutgers has a duty to defend and indemnify the State as an additional insured on
a policy issued by Rutgers to Eagle in connection with the August 10, 2006
Casasola accident. The Rutgers policy at issue (Policy No. SKP
3105205) covers the period from 12/11/05 through 12/11/06, and the State was
added as an additional insured on the policy. The policy for that period was
the second renewal of the initial policy. The initial policy contains an
employee exclusion which Rutgers contends bars coverage for any employee of
Eagle who is injured while working within the scope of his
Although a copy of the relevant
policy was provided to Rutgers’ agent who in turn provided it to Vavas,
apparently neither Eagle nor the State were made aware of the employee
exclusion. Rutgers now relies upon the exclusion to deny coverage and to seek a
dismissal pursuant to CPLR 3211 (a) (7).
The employee exclusion provides as follows:
This insurance does not apply to:
“bodily injury” to any “employee” of any insured arising
out of or in the course of:
a) Employment by any insured; or
b) performing duties related to the conduct of any insured’s
“bodily injury” to any contractor or any “employee” of
any contractor arising out of or in the course of the rendering or performing
services of any kind or nature whatsoever by such contractor or
“employee” of such contractor for which any insured may become
liable in any capacity; or
Any obligation of any insured to indemnify or contribute with another because of
damages arising out of such “bodily injury”; or
“bodily injury” sustained by the spouse, child, parent brother or
sister of any “employee” of any insured, or of a contractor, or any
“employee” of any contractor as a consequence of any injury to any
person as set forth in paragraph (i) and (ii) of this endorsement.
This exclusion applies to all claims and suits by any person or organization for
damages because of such “bodily injury”, including damages for care
and loss of services.
As used herein the definition of “employee” includes a “leased
worker” and a “temporary worker”.
This exclusion replaces the exclusion relating to “bodily injury to
employees and relatives of “employees” contained in the Exclusions
Section of the policy to which this endorsement is attached and the definition
fo “employee” in said policy.
All other terms and conditions remain unchanged.
Ex. G to Rutgers’ Affirmation in Support of its Motion to Dismiss,
dated April 9, 2009.
The State does not contend that the exclusion is ambiguous. Rather, it argues
that based upon the Certificate of Insurance issued by Vavas, Rutgers
represented that it had provided the insurance coverage required by
Eagle’s contract with the State, when in fact it had not, and, therefore,
it should be estopped from denying coverage. See Affirmation of
Cross-Motion and in Opposition to Third-Party Defendant Rutgers Motion, dated
May 5, 2009 (“Opposition Affirmation” ¶ 19). Vavas,
however, who issued the Certificate of Insurance, is not an agent of Rutgers,
but rather an agent of Eagle. Accordingly, the representation contained in the
Certificate of Insurance does not bind Rutgers, and the employee exclusion must
be given effect. The court grants Rutgers’ motion to dismiss the
third-party complaint against it and denies the State’s cross-motion for
declaratory relief against Rutgers.
August 26, 2009
HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims
.In connection with these motions the court
has read and considered the Notice of Motion to Dismiss, dated February 24,
2009, Affirmation in Support of Motion to Dismiss, dated February 24, 2009,
and Affidavit in Support, sworn to February 24, 2009, together with
exhibits annexed thereto; Notice of Cross-Motion to Dismiss and Affirmation in
Support, dated April 29, 2009, together with exhibits annexed thereto;
Amended Notice of Cross-Motion for Declaratory Judgment, dated May 7, 2009;
Affirmation in Opposition to State of New York’s Cross-Motion to Dismiss
and in Reply on Eagle’s Motion, dated May 6, 2009, together with
exhibits annexed thereto; and Reply Affirmation, dated May 13, 2009; and
the Notice of Motion to Dismiss the Third-Party Claim Against Rutgers and
Affirmation in Support, dated April 9, 2009, together with exhibits annexed
thereto; Notice of Cross-Motion for Declaratory Relief and Affirmation in
Support, dated May 5, 2009, together with exhibits annexed thereto;
Rutgers’ Reply in Further Support of its Cross-Motion to Dismiss and in
Opposition to the State’s Cross-Motion for a Declaratory Judgment &
Cross-Motion to Dismiss, dated May 8, 2009, together with exhibit annexed
thereto; Affirmation in Opposition to Rutgers’ Motion to Dismiss, dated
May 7, 2009; Rutgers’ Reply in Further Support of its Cross-Motion to
Dismiss and in Reply to Eagle’s Opposition, dated May 11, 2009,
together with exhibit annexed thereto.
.The State does not deny that the policy at
issue continued to contain the same employee exclusion.