Travelers Insurance v. Volmar Construction Co.

300 A.D.2d 40, 752 N.Y.S.2d 286, 2002 N.Y. App. Div. LEXIS 11722
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 5, 2002
StatusPublished
Cited by58 cases

This text of 300 A.D.2d 40 (Travelers Insurance v. Volmar Construction Co.) 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
Travelers Insurance v. Volmar Construction Co., 300 A.D.2d 40, 752 N.Y.S.2d 286, 2002 N.Y. App. Div. LEXIS 11722 (N.Y. Ct. App. 2002).

Opinion

—Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 25, 2002, which, to the extent appealed from, granted plaintiffs’ motion for summary judgment to the extent of declaring that defendant AIU Insurance Company was obligated to defend plaintiffs in an underlying property damage action and awarded plaintiffs costs and expenses of defending said action in an amount to be determined by a special referee, and denied defendants’ cross motion for a declaration as to their nonliability, unanimously reversed, on the law, with costs, plaintiffs’ motion for summary judgment denied and defendants’ cross motion for a declaration of nonliability under the policy issued by AIU granted.

This is a declaratory judgment action instituted by plaintiffs The Travelers Insurance Company (Travelers) and its insured E&Y General Construction Co. (E&Y) for a declaration that defendant AIU Insurance Company (AIU) was obligated to provide a defense and indemnification to E&Y in an underlying action. The underlying property damage action arose out of a [41]*41fire that occurred during a renovation project at Prospect Heights High School (School) on January 22, 1997. Defendant Volmar Construction Co. (Volmar) was the general contractor on the project and E&Y was a subcontractor working at the site. Volmar was insured by a general liability policy issued by defendant AIU, and E&Y was named an additional insured on the policy.

In the underlying action commenced in September 1997, St. Paul Fire & Marine Insurance Co., as subrogee of the New York City Construction Authority (Authority), sought recovery from E&Y, the allegedly responsible party, of the amount it paid to the Authority for the property damage loss under the School’s policy. E&Y forwarded the complaint to its own insurer, Travelers, who assumed the defense of E&Y. E&Y did not forward the complaint or otherwise notify AIU of the claim. However, E&Y did commence a third-party action against Vol-mar, also insured by AIU, and AIU provided a defense to Vol-mar after timely notification. AIU has acknowledged that it received notice of the fire shortly after it occurred from another subcontractor at the site.

The AIU policy issued to Volmar required that the insured notify AIU of an “occurrence” which may give rise to a claim “as soon as practicable.” It farther required that if a claim or suit is brought, the insured must provide “written notice of the claim or suit as soon as practicable.” AIU claims that it first received notice when E&Y demanded that AIU defend and indemnify it on May 12, 1999, 19 months after E&Y received the complaint in the underlying action. As a result, on May 26, 1999, AIU disclaimed coverage based upon E&Y’s failure to timely notify it of the claim as required by the policy.

On March 16, 2000, Travelers and E&Y commenced the instant action seeking a declaration that AIU was required to defend and indemnify E&Y in the underlying action, or alternatively, a declaration that Volmar breached its contract with E&Y by failing to obtain insurance to protect E&Y’s interests.

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Bluebook (online)
300 A.D.2d 40, 752 N.Y.S.2d 286, 2002 N.Y. App. Div. LEXIS 11722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-v-volmar-construction-co-nyappdiv-2002.