Highrise Hoisting & Scaffolding, Inc. v. Liberty Insurance Underwriters, Inc.

Appellate Division of the Supreme Court of New York

Highrise Hoisting & Scaffolding, Inc. v. Liberty Insurance Underwriters, Inc.

116 A.D.3d 647, 984 N.Y.S.2d 366

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 2014

StatusPublished

This text of 116 A.D.3d 647 (Highrise Hoisting & Scaffolding, Inc. v. Liberty Insurance Underwriters, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Highrise Hoisting & Scaffolding, Inc. v. Liberty Insurance Underwriters, Inc., 116 A.D.3d 647, 984 N.Y.S.2d 366 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered April 11, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion for summary judgment declaring that defendant RSUI Indemnity Co. was obliged to indemnify Highrise in the underlying actions, and denied RSUI’s cross motion for summary judgment, unanimously affirmed, with costs. Appeal from decision, same court and Justice, dated January 14, 2013, directing the parties to settle order, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the insuring agreement of the primary insurance policy issued by defendant Liberty Insurance Underwriters, Inc. broadly provides coverage for all “occurrences,” which are defined as “accidents,” the underlying actions, which resulted from an automobile accident, would fall within the Liberty policy’s broad coverage grant (see Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386, 388 [1st Dept 2006]). It is undisputed, however, that the Liberty policy contains an automobile exclusion, and if a claim falls within the scope of the policy’s insuring agreement, an insurer must issue a timely disclaimer pursuant to Insurance Law § 3420 (d) to deny coverage based upon an exclusion (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 189-190 [2000]; Zappone v Home Ins. Co., 55 NY2d 131, 136-137 [1982]). The RSUI excess policy follows the form of the Liberty primary policy because it [648]*648incorporates, by reference, the terms of the underlying policy and is designed to match the coverage provided by the underlying policy (see Tishman Constr. Corp. of N.Y. v Great Am. Ins. Co., 96 AD3d 494 [1st Dept 2012]).

Excess insurers have an obligation to disclaim pursuant to Insurance Law § 3420 (d); accordingly, where RSUI disclaimed coverage more than seven months after receiving notice of claim, and failed to offer any explanation for its delay, RSUI’s attempted disclaimer failed to comply with Insurance Law § 3420 [d] as a matter of law (see Grow-Kiewit-MK-Maclean Grove v Lexington Ins. Co., 232 AD2d 329, 329 [1st Dept 1996]). Concur — Tom, J.E, Acosta, Saxe, DeGrasse and Freedman, JJ.

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Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered April 11, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion for summary judgment declaring that defendant RSUI Indemnity Co. was obliged to indemnify Highrise in the underlying actions, and denied RSUI’s cross motion for summary judgment, unanimously affirmed, with costs. Appeal from decision, same court and Justice, dated January 14, 2013, directing the parties to settle order, unanimously dismissed, without costs, as taken from a nonappealable paper.

Since the insuring agreement of the primary insurance policy issued by defendant Liberty Insurance Underwriters, Inc. broadly provides coverage for all “occurrences,” which are defined as “accidents,” the underlying actions, which resulted from an automobile accident, would fall within the Liberty policy’s broad coverage grant (see Sixty Sutton Corp. v Illinois Union Ins. Co., 34 AD3d 386, 388 [1st Dept 2006]). It is undisputed, however, that the Liberty policy contains an automobile exclusion, and if a claim falls within the scope of the policy’s insuring agreement, an insurer must issue a timely disclaimer pursuant to Insurance Law § 3420 (d) to deny coverage based upon an exclusion (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 189-190 [2000]; Zappone v Home Ins. Co., 55 NY2d 131, 136-137 [1982]). The RSUI excess policy follows the form of the Liberty primary policy because it [648]*648incorporates, by reference, the terms of the underlying policy and is designed to match the coverage provided by the underlying policy (see Tishman Constr. Corp. of N.Y. v Great Am. Ins. Co., 96 AD3d 494 [1st Dept 2012]).

Excess insurers have an obligation to disclaim pursuant to Insurance Law § 3420 (d); accordingly, where RSUI disclaimed coverage more than seven months after receiving notice of claim, and failed to offer any explanation for its delay, RSUI’s attempted disclaimer failed to comply with Insurance Law § 3420 [d] as a matter of law (see Grow-Kiewit-MK-Maclean Grove v Lexington Ins. Co., 232 AD2d 329, 329 [1st Dept 1996]). Concur — Tom, J.E, Acosta, Saxe, DeGrasse and Freedman, JJ.

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Bluebook (online)

116 A.D.3d 647, 984 N.Y.S.2d 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/highrise-hoisting-scaffolding-inc-v-liberty-insurance-underwriters-nyappdiv-2014.

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