Home/Second Circuit/Citizens Insurance Co. of America v. Risen Foods, LLC

Citizens Insurance Co. of America v. Risen Foods, LLC

880 F.3d 73
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 22, 2018
Docket16-4166-cv
StatusPublished
Cited by6 cases

This text of 880 F.3d 73 (Citizens Insurance Co. of America v. Risen Foods, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Insurance Co. of America v. Risen Foods, LLC, 880 F.3d 73 (2d Cir. 2018).

Opinion

JON 0. NEWMAN, Circuit Judge:

In this insurance coverage dispute, Citizens Insurance Company of America (“Citizens”) appeals from the Nov. 23, 2016, judgment of the United States District Court for the Northern District of New York (Brenda K. Sannes, District Judge). The judgment declared that Citizens is obligated to defend and, if necessary, indemnify Risen Foods, LLC (“Risen”) and Petr A. Tkach under a businessowners policy and an umbrella policy, both issued by Citizens, in an underlying suit brought by Jason J. Tanner and Cristina Tanner for damages arising out of a motor vehicle accident.

Because' we conclude that Risen’s vehicle was not covered by either policy,' we reversé.

Background

On April 29, 2013, a van owned by Risen and driven by Tkach, a Risen employee, collided with a truck driven by Tanner. Tanner suffered serious injuries. Later in 2013, Tanner and his wife, Cristina, sued Risen and Tkach for Tanner’s, injuries and related loss of services (“underlying suit”).

The Risen vehicle was insured under a commercial auto policy issued by State Farm Insurance Company (“State Farm”) with a liability limit of $1,000,000 per occurrence. State Farm has provided defense and indemnity coverage to Risen and Tkach with respect to the underlying suit and offered close to the policy limit to settle it. . "

Citizens issued to Risen a businessown-ers policy and an umbrella policy. Both policies bear the same policy number, OBF-9828714-00, and .the SCHEDULE OF UNDERLYING POLICIES of the umbrella policy states, “This schedule is part of Policy Number; OBF-9828714-00,” The businessowners policy has a limit of $1,000,000 per occurrence, and the umbrella policy has a limit of $2,000,000 per occurrence.

The policy provisions. The businessown-ers policy in section 11(A)(1), titled “Business Liability,” provides:

“We will pay tho.se sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, *75 ‘property damage’ or ‘personal and advertising injury* to which this insurance applies.”

The businessowners policy in section 11(B), titled “Exclusions,” provides:

“This insurance does not apply to
“g. Aircraft, Auto or Watercraft
“‘Bodily injury’ or ‘property damage’ arising out of the ownership ... of.any ... ‘auto’ ... owned ... by ... any insured.”

The businessowners policy contains an endorsement captioned “HIRED AUTO AND NON-OWNED AUTO LIABILITY-NEW YORK” (“the endorsement”), which states, “This endorsement modifies insurance provided under the following: BUSINESSOWNERS POLICY.” Under the heading titled “Coverage,” the, endorsement provides:

“1. Hired Auto Liability
“The insurance provided under Section II—Liability of the Businessowners Liability Coverage' Form, Paragraph A.X. Business Liability, applies to ‘bodily injury or ‘property damage’ arising out of the maintenance or use of a ‘hired auto’ by you or your ‘employees’ in the course of your business,
“2. Non-Owned Auto Liability
“The insurance provided under the Bu-sinessowners' Liability Coverage Form, Paragraph A.l. Business Liability, applies to ‘bodily injury’ or ‘property damage’ arising out of the use of any ‘non-owned auto’ in your business by any person other than you.”

The umbrella policy in section 1(A)(1)(a), titled “Insuring Agreement,” provides:

“We will pay on behalf of the insured the ‘ultimate net loss’ in excess of the ‘retained limit’ because of ‘bodily injury’ or ‘property damage’ to which this, insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking damages for such ‘bodily injury* or ‘property damage’ when the ‘underlying insurance’ does not provide coverage or the limits of ‘underlying insurance’ have been exhausted. ... However, we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury* or ‘property damage’ to which this insurance does not apply.”

The umbrella policy in section V(24), titled “DEFINITIONS,” defines “underlying insurance” as “any policies of insurance listed in the Declarations under the Schedule of ‘underlying insurance’.”- The Schedule of Underlying Policies appears as follows:

*76

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Cite This Page — Counsel Stack

Bluebook (online)
880 F.3d 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-insurance-co-of-america-v-risen-foods-llc-ca2-2018.