|Claimant short name:||GONNERMAN|
|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):||MERCHANTS INSURANCE GROUP|
|Judge:||James J. Lack|
|Claimant's attorney:||Steven Cohn, P.C.|
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: John M. Shields, Assistant Attorney General
|Third-party defendant's attorney:||Baxter Smith & Shapiro, P.C.
By: Arthur J. Smith, Esq.
|Signature date:||April 16, 2010|
|See also (multicaptioned case)|
This is a claim brought by Scott Gonnerman (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 December 11, 2000, at a work site located on the east side of the exit ramp of Exit M10 (Loop Parkway) off the southbound Meadowbrook State Parkway, Town of Hempstead, New York.
Lighting Maintenance, Inc. (hereinafter "LMI") was contracted to upgrade and install lighting systems over a section of the Meadowbrook State Parkway and the Loop Parkway. The work was done pursuant to Contract Number D258341 (third-party defendant's Exhibit E). Pursuant to the Contract, LMI set up a staging area at the site of the accident to have access to both roadways. Claimant was delivering lamp posts to the staging area. He was out of his vehicle and standing when he was struck by a vehicle driven into the work area by an errant motorist.
Defendant began a third-party action against Merchants Mutual Insurance Company (hereinafter "Merchants") the insurance company from which LMI purchased a liability policy. Defendant now moves, pursuant to Court of Claims Act §9(9-a), for an order declaring that Merchants must provide the State with a defense in the underlying action(1) . According to the State, the contract with LMI required LMI to purchase and maintain an insurance policy naming the State as an additional insured. Claimant provides a copy of the agreement as a supporting exhibit (Exhibit E). The State furnished a copy of an insurance policy from Merchants, which names the State as the insured.
Merchant opposes the motion and cross-moves to dismiss the third-party action(2)
. Merchants argues that the policy does not cover acts of negligence by the State of New York and the company states it does not owe any coverage because barricades were not required to be erected at the staging area.
Defendant previously moved for the relief it currently seeks before the Hon. S. Michael Nadel (M-67254; CM-67548). The Court granted defendant's motion and ordered Merchants to defend the State of New York. However, the Appellate Division, Second Department modified Judge Nadel's decision. The basis of proof of defendant as an additional insured was a certificate of insurance which was held to be insufficient to show actual insurance existed (48 AD3d 517). As the relevant language of the insurance policy was not available, it was impossible to determine if the policy covered the instant situation or not.
As previously noted, the Court has been provided with the relevant policy. In examining the relevant language of the insurance policy issued to defendant, the Court finds no merit to Merchants' argument that the instant claim is not covered (see Section 1[1a and b]). The Court also agrees with Judge Nadel's previous analysis:
It is well settled that where an insurance policy includes the insurer's promise to defend the insured against specified claims as well as to indemnify for actual liability, the insurer's duty to furnish a defense is broader than its obligation to indemnify (see International Paper Co. v Continental Cas. Co., 35 NY2d 322, 326; Lionel Freedman, Inc. v Glens Falls Ins. Co., 27 NY2d 364, 368). "So 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)
Based upon the foregoing, the State's motion for a declaratory judgment is granted and Merchants' cross-motion to dismiss the third-party action is denied.
April 16, 2010
Hauppauge, New York
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 for a Declaratory Judgment dated July 3, 2009 and filed July 8, 2009; Request for Declaratory Judgment of John M. Shields, Esq. with annexed Exhibits 1-9 dated July 3, 2009 and filed July 8, 2009.
2. The following papers have been read and considered on third-party defendant's cross-motion: Notice of Cross-Motion dated September 1, 2009 and filed September 1, 2009 and September 3, 2009; Affirmation of Arthur J. Smith, Esq. with annexed Exhibits A-M dated September 1, 2009 and filed September 3, 2009; Memorandum of Law of Arthur J. Smith, Esq. dated September 1, 2009 and received September 1, 2009; Response to Cross-Motion for Summary Judgment of John Shields, Esq. with annexed Exhibit A dated October 9, 2009 and filed October 19, 2009.