Tokio Marine & Fire Insurance v. Rosner

206 F. App'x 90
CourtCourt of Appeals for the Second Circuit
DecidedNovember 22, 2006
DocketNo. 05-6481-cv
StatusPublished
Cited by6 cases

This text of 206 F. App'x 90 (Tokio Marine & Fire Insurance v. Rosner) 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
Tokio Marine & Fire Insurance v. Rosner, 206 F. App'x 90 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Defendant Ingrid K. Rosner appeals from an award of summary judgment in favor of plaintiffs Tokio Marine and Fire Insurance Co., Ltd. (“Tokio Marine”) and Toyota Motor Credit Corporation (“TMCC”) and from the denial of her own motion for partial summary judgment. Tokio Marine is the insurer of a motor vehicle owned by TMCC and leased to Rosner on a long-term basis. Plaintiffs sued Rosner for indemnification of money damages paid by Tokio Marine on behalf of TMCC as compensation for injuries caused by Rosner while operating the leased vehicle. Although Rosner cannot dispute that her lease agreement with TMCC contains an indemnification clause, she submits that the provision is invalid under New York law. She asserts that, as a long-term lessee, she was a permissive user of the TMCC vehicle in question and, as such, under N.Y. Veh. and Traf. Law § 345(b)(2), 11 N.Y.C.R.R. § 60-1.1(c)(2), and Ins. Law § 3420(e), she must be recognized as an “insured” under TMCC’s liability policy with Tokio Marine and, therefore, shielded from this indemnification action by New York’s anti-subrogation rule. See Pa. Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 468, 510 N.Y.S.2d 67, 68, 502 N.E.2d 982 (1986) (“An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered.”). She further submits that plaintiffs were not entitled to summary judgment because evidence of deceptive business practices and fraudulent inducement raised a triable issue of fact as to the validity of her lease agreement. She also claims that issues as to the reasonableness of the settlement paid by Tokio Marine and the effect of the reassignment of the lease made summary judgment inappropriate.

We review a summary judgment award de novo, examining all facts in the light most favorable to the non-moving party. See, e.g., Frommert v. Conkright, 433 F.3d 254, 262 (2d Cir.2006); Fed.R.Civ.P. 56(c). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

A. The Validity of the Lease Agreement’s Indemnification Clause

1. New York Vehicle and Traffic Law § 315

Rosner submits that the indemnification clause of her lease agreement with TMCC must be deemed invalid if, under New York law, she is an insured under the Tokio Marine policy with TMCC. In support, she cites N.Y. Veh. and Traf. Law § 345(b)(2-3), which states that a motor vehicle liability policy “shall insure as insured the person named therein and any other person using or responsible for the use of any such motor vehicle ... with the consent of such named insured” against personal injury in the amount of $25,000. Two other provisions of the same law, however, undercut Rosner’s argument. See id. §§ 345(f); 345(g).

Section 345(g) states that a “motor vehicle liability policy” may encompass several [93]*93policies that together meet the requirements of the statute, including those of § 345(b)(2-3). The record demonstrates that the “motor vehicle liability policy” that insured the leased vehicle at issue consisted of (1) Rosner’s personal insurance policy with State Farm for $100,000 in primary personal liability coverage, which policy Rosner was required to maintain as a condition of her lease agreement with TMCC and which named TMCC as an additional insured, see TMCC Lease Agreement If 20(a); (2) Rosner’s personal insurance policy with Traveler’s for $1,000,000, and (3) the Tokio Marine policy with TMCC, which afforded excess coverage to the lessor, see Tokio Marine Policy, Endorsement 4, 2.

Section 345(f) specifically exempts excess insurance protection from provisions of the law relating to primary insurance, including the § 345(b)(2) requirement that permissive users be treated as primary insureds. Thus, because Rosner is not an insured under the Tokio Marine policy with TMCC, she is subject to suit for indemnification by that insurer.

To avoid this result, Rosner submits that Tokio Marine’s policy insuring TMCC is primary, rather than excess, and that as a permissive user, she is thus required to be insured. In support, she cites language in the policy’s Business Auto Coverage Form, which states that “[fjor any ‘auto’ [TMCC] own[s], this Coverage form provides primary insurance.” Tokio Marine Policy, Business Auto Coverage Form, § IV(B)(5)(a). To the extent Endorsement 4 to the policy states that “the insurance provided by this endorsement is excess over any other collectible insurance,” id., Endorsement 4, 2, Rosner submits that the language is meaningless because the endorsement itself provides no insurance. The law, however, disfavors contract constructions that render provisions meaningless. See, e.g., Ronnen v. Ajax Elec. Motor Corp., 88 N.Y.2d 582, 589, 648 N.Y.S.2d 422, 424, 671 N.E.2d 534 (1996). In any event, when the quoted language from the endorsement is read in context, its meaning becomes plain. See Analisa Salon, Ltd. v. Elide Props., LLC, 30 A.D.3d 448, 448-49, 818 N.Y.S.2d 130, 131 (2d Dep’t 2006) (holding that single clauses cannot be construed by taking them out of their context).

Endorsement 4 plainly states that it “changes the policy” with respect to the “insurance provided under the ... Business Auto Coverage Form.” Endorsement 4, 1. Thus, its reference to “insurance provided by this endorsement” can only sensibly be construed to refer to insurance originally provided as primary coverage in the Business Auto Coverage Form, which the endorsement now “changes” to provide as coverage excessive “over any other collectible insurance.” Id. at 1-2 1. See Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377, 383, 763 N.Y.S.2d 790, 792, 795 N.E.2d 15 (2003) (“We read an insurance policy in light of common speech and the reasonable expectations of a businessperson.” (internal quotation marks omitted)). That the change was intended to clarify that long-term leaseholders were afforded no coverage is clear from the fact that the endorsement also amended the policy to add a definition of “leased auto” as “an ‘auto,’ that you (“TMCC”) lease, under a leasing agreement of at least one year, to a third party which requires the third party to provide primary insurance on your behalf.” Endorsement 4, 1 (emphasis added).

[94]*94In sum, because neither the record nor the law supports Rosner’s claim that she is an insured under the Tokio Marine policy, she is not shielded from a suit for indemnification by N.Y. Veh. & Traf. Law § 345(b)(2—3). See Citywide Auto Leasing, Inc. v. City of New York, 294 A.D.2d 528, 528, 742 N.Y.S.2d 867, 868 (2d Dep’t 2002) (upholding indemnification obligations of vehicle’s long-term lessee); Hamilton v. Khalife, 289 A.D.2d 444, 445-46, 735 N.Y.S.2d 564, 566-67 (2d Dep’t 2001) (upholding endorsement that excluded lessee from lessor’s insurance policy).

2. 11 NYCRR § 60-1.1(c)(2)

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Bluebook (online)
206 F. App'x 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tokio-marine-fire-insurance-v-rosner-ca2-2006.