Arch Specialty Insurance Co. v. Farm Family Casualty Insurance Co.

238 F. Supp. 3d 604, 2017 U.S. Dist. LEXIS 30529, 2017 WL 875857
CourtDistrict Court, S.D. New York
DecidedMarch 3, 2017
DocketNo. 15 CV 10069-LTS
StatusPublished
Cited by7 cases

This text of 238 F. Supp. 3d 604 (Arch Specialty Insurance Co. v. Farm Family Casualty Insurance Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arch Specialty Insurance Co. v. Farm Family Casualty Insurance Co., 238 F. Supp. 3d 604, 2017 U.S. Dist. LEXIS 30529, 2017 WL 875857 (S.D.N.Y. 2017).

Opinion

Memorandum Opinion and Order

LAURA TAYLOR SWAIN, United States District Judge

On December 28, 2015, Plaintiff Arch Specialty Insurance Company (“Plaintiff’ or “Arch”) brought this action, seeking a judgment declaring that: (1) Mega Contracting Group, LLC (“Mega”), East 138th Street Owners LLC (“East 138th Street”), and Barrier Free Living Housing Development Fund Corporation (“Barrier Free Living”) (collectively, the “Tendering Parties”) qualify as additional insureds on a general liability insurance policy issued by Defendant Farm Family Casualty Insurance Company (“Defendant” or “Farm Family”) to Mastercraft Masonry I, Inc. (“Mastercraft”), with respect to an underlying personal injury action pending in New York State Supreme Court, Joseph A. Giampa v. Barrier Free Living Housing Development Fund Corp. et al., Index No. 22943/2015E (the “Underlying Action”); (2) Farm Family has an obligation to defend and indemnify the Tendering Parties in the Underlying Action; and (3) Farm Family must reimburse Arch for the defense costs that it has incurred in the Underlying Action. (See docket entry no. 5.) Plaintiff also seeks a monetary judgment in the amount of $29,744.02 for attorneys’ fees and defense costs incurred in the Underlying Action. (Id.) Plaintiff later filed an amended complaint on April .13, 2016, seeking the same relief. (See docket entry no. 15.) The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332.

On July 20, 2016, Plaintiff moved for summary judgment against Farm Family on all three of its causes of action, pursuant to Fed. R. Civ. P. 56, and to stay all discovery and relevant deadlines set forth in the Court’s March 11, 2016, Pre-Trial Scheduling Order, pursuant to Fed. R. Civ. P. 26. (See docket entry no. 17.)

The Court has reviewed thoroughly all of the parties’ submissions. For the reasons stated below, Plaintiffs motion for summary judgment is granted, Plaintiffs motion to stay proceedings is denied as moot, and the case is referred to Magistrate Judge Gorenstein for an inquest as to the defense cost l’eimbursement to which Arch is entitled.

Background

The following summary of relevant facts is drawn primarily from Plaintiffs State[607]*607ment of Undisputed Material Facts (“PSUF”) (Docket entry no. 21) and affidavits submitted in connection with the instant motion. References to the PSUF are inclusive of the evidence cited therein. Except as indicated otherwise, the facts summarized below are undisputed.

The Mastercraft Contract

On or about May 31, 2013, Mastercraft entered into a contract (the “Mastercraft Contract”) with Mega, a general contractor, pursuant to which Mastercraft agreed to serve as the masonry subcontractor at a construction site located at 616 East 139th Street, Bronx, New York (the “Project Site”). (PSUF ¶ 1; see also Vinciguerra Decl., Ex. 3, Docket entry no. 19-3.) East 138th Street and Barrier Free Living owned the Project Site. (PSUF ¶ 2.)

Pursuant to Paragraph 34 of the Mas-tercraft Contract, “Liability for Damage & Personal Injury”:

The Subcontractor [Mastercraft] hereby assumes entire responsibility and liability for any and all damages or injury of any kind or nature whatever (including death resulting therefrom) to all persons, whether employees of the Subcontractor or otherwise, and to all property caused by, resulting from, arising out of, or occurring in connection with the execution of the Work [defined as all masonry work as per the attached Scope of Work: Masonry dated 5/31/13 and all work to be done according to the drawing and specifications listed on the attached Exhibit A and Exhibit B, except for any changes agreed upon between General Contractor and Subcontractor during bid review and buyout]. Except to the extent, if any, expressly prohibited by statute, should any claims for such damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon [Mega’s] alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of [Mega], the Subcontractor agrees to indemnify and save harmless [Mega], its members, officers, agents, servants and employees, the Owner [East 138th Street and Barrier Free Living], the Funding Agency and all other persons or entities required to be indemnified under the provisions of the General Contract (hereinafter collectively referred to as “the Indemnitees”) from and against any and all such claims, and further from and against any and all loss, cost, expense, liability, damage or injury, including legal fees and disbursements, that the Indemnitees may directly or indirectly sustain, suffer or incur as a result thereof and the Subcontractor agrees to and does hereby assume, on behalf of the Indemnitees, the defense of any action at law or in equity which may be brought against the Indemnitees upon or by reason of such claims and to pay on behalf of the Indemnitees, upon demand, the amount of any judgment that may be entered against the Indem-nitees in any such action. In the event that any such claims, loss, cost, expense, liability, damage or injury arise or are made, asserted or threatened against the Indemnitees, [Mega] shall have the right to withhold from any payments due or to become due to the Subcontractor an amount sufficient in the judgment of [Mega] to protect and indemnify the Indemnitees from and against any and all such claim, loss, cost, expense, liability, damage or injury, including legal fees and disbursements, or [Mega] in its discretion, may require the Subcontractor, to furnish a surety bond or letter of credit satisfactory to [Mega] guaranteeing such protection, which bond of letter of credit shall be furnished by the Sub[608]*608contractor within five (5) days after written demand has been made therefor,

(Vinciguerra Decl., Ex. 3 at 1, 17.)

Paragraph' 35 of the Mastercraft Contract required Mastercraft “to procure and maintain, at its own expense, until completion and final acceptance of the work ,,, [insurance for] Comprehensive General Liability, including contingent, contractual products, and completed operations ... with a minimum limit of $1,000,000.00 combined single limit for bodily injury and property damage, and $2,000,000.00 Annual Aggregate,’' along with additional umbrella insurance coverage. (Id. at 18.)

Paragraph 35(D) of the Mastercraft Contract provided that Mega “and the other Indemnitees shall be named as additional insureds on a primary basis to [Mastercraft’s] Comprehensive General Liability using appropriate ISO forms that include Premises Operations Liability, Contractual Liability, Advertising and Personal Injury Liability and Products/Completed Operations Liability, or by using a company specific endorsement that provide equivalent protection,” (Id at 19 (emphasis added).)

The Insurance Policies

Arch issued “Commercial General Liability Policy Number GAP0009932-08” to Mega for the policy period September 27, 2013 to September 27, 2014 (the “Arch Policy”). (Vinciguerra Decl., Ex. 2, Docket entry no.

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Bluebook (online)
238 F. Supp. 3d 604, 2017 U.S. Dist. LEXIS 30529, 2017 WL 875857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arch-specialty-insurance-co-v-farm-family-casualty-insurance-co-nysd-2017.