Village of Piermont v. American Alternative Insurance

151 F. Supp. 3d 438, 2015 U.S. Dist. LEXIS 169475, 2015 WL 9302830
CourtDistrict Court, S.D. New York
DecidedDecember 17, 2015
Docket14 Civ. 5172 (ER)
StatusPublished
Cited by8 cases

This text of 151 F. Supp. 3d 438 (Village of Piermont v. American Alternative Insurance) 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
Village of Piermont v. American Alternative Insurance, 151 F. Supp. 3d 438, 2015 U.S. Dist. LEXIS 169475, 2015 WL 9302830 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

Ramos, District Judge

The Village of Piermont (the “Village”) brings this action against American Alternative Insurance Corporation (“AAIC”), seeking a declaratory judgment that AAIC is obligated to provide a defense to Michael Bettman, Danny' Goswick, Jr., and Sam Kropp (the “Individual Defendants”) in the lawsuit Bernstein v. Village of Pier-mont, 11-Civ. 3677-(ER) (the “Underlying Action”), and is required to reimburse the Village for the expenses it has incurred in providing a defense to the Individual Defendants thus far. The Village claims that AAIC is obligated to defend the Individual Defendants under a Portfolio Policy of insurance issued to the Village (the “Policy”), while AAIC maintains that no such defense is required under the terms of the Policy. The parties have cross-moved for summary judgment (Doc. 27, 34). For the reasons stated herein, the Village’s motion is GRANTED and AAIC’s motion is DENIED.

[441]*441I. BACKGROUND

A. The Underlying Action

To determine whether AAIC has a duty to defend the Individual Defendants, it is necessary to examine the allegations in the Underlying Action.1

On May 31, 2011, Mark Bernstein, .individually and as parent of A.B., a minor, commenced a lawsuit against the Village and the Individual Defendants in this Court.2 See Complaint, 11 Civ. 3677 (ER) (Doc. 1). Bernstein filed an Amended Complaint (the “Complaint”) on June 10, 2011. See Amended Complaint (“CompL”), 11 Civ. 3677 (ER) (Doc. 2). The Complaint alleges a civil rights claim pursuaiit to 42 U.S.C. Section 1983 against the' Village and, jointly and severally, the Individual Defendants. Id. ¶ 1. Specifically, Bernstein, alleges that his son, A.B., was made “physically and psychologically ill” when the Individual Defendants physically restrained A.B and forced him to engage in acts of sodomy as párt of a hazing ritual-when A.B. joined the Village Fire Department (the “Department”). Id. ¶¶ 5, 13,17. Bernstein further alleges that in the process of hazing A.B., the Individual Defendants falsely imprisoned him. Id. ¶ 25.

According to Bernstein, the Village condoned the hazing, and deemed it‘to be'“a prerequisite in acceptance into [the De-> partment].” Id. ¶ 6. For example, each of the Individual Defendants is alleged to have undergone similar hazing when they joined the Department. Id. Furthermore, the hazing is alleged to. have been “undertaken in furtherance of [the Individual Defendants’] positions as volunteer firefighters ... and pursuant to an accepted policy of [the Department] and thus within the scope of their duties and authority.” Id. ¶ 7. The Village is alleged to have “promulgated, fostered and implemented [this] policy.” Id. ¶ 5.

On July 17, 2015, this Court stayed discovery in the Underlying Action pending resolution of this declaratory judgment action. Hearing Transcript at 18:20-19:0, 11 Civ. 3677 (ER) (Doc. 129).

B. The Insurance Policy

The Policy is identified as VFIS-TR-2064005-01/000 and covered the period from July 9, 2010 to July 9, 2011. Ex. G3 at 1. The Policy names as its insured, the Village of Piermont, the Village of Pier-mont Fire Department, Empire Hose Company #1, and the Village of Piermont Underwater Rescue Team. M. at 6. The Policy.includes two types of-coverage implicated here: a General Liability Forms and Endorsements (the “GL Coverage”) and a Management- Liability Forms and Endorsements (the “ML Coverage”).4 Id. at 3-4.

[442]*442I.- The ML Coverage

In addition to the named insureds, The ML Coverage includes as insureds “volum teers and employees .. / but only for acts within the course ahd Scope of them employment by [the named' insured] or authorized duties on [the named insured’s] behalf.” Ex. H (“ML”) at 6-7. The ML Coverage provides for a defense' against any suit seeking damages arising out of three types of offenses, two of which the Village argues are implicated here: an “employment practices” offense or a “wrongful act.” Id. at 1.

The ML Coverage defines “employment practices” as “an actual or alleged improper employment related practice, policy, act or omission involving an actual, prospective, or former volunteer or employee, including: ... ‘sexual harassment.’ ” Id. at 12, ■ ■ •

“Sexual harassment” is further defined in the policy as:

[A]ny actual, attempted or alleged unwelcome Sexual advances, requests for sexual favors, or other conduct of a sexual nature by a person, or by persons acting in concert, which causes injury. ‘Sexual Harassment’ includes: a. The above - conduct when submission to or rejection of such conduct is made either explicitly or implicitly a condition of a person’s employment, or a basis for employment decisions affecting a person; or b. The above conduct when such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile or offensive work environment.

Id. at 13.

The ML Coverage defines a “wrongful act” as:

[A]ny actual or alleged error, act, omission, misstatement, misleading statement, neglect or breaches of duty committed by you or on behalf of you in the performance of your operations, including misfeasance, malfeasance, or nonfea-sance in the discharge of duties, individually or collectively that results directly but unexpectedly and unintentionally in damages to others.

Id.

The ML Coverage specifies that the insurer will have-the duty to defend any. suit seeking damages for either of these offenses “even if the allegations of the ‘suit’ are groundless, false or fraudulent.” Id, at VMLNY1-1., ■

The ML Coverage also contains a number of exclusions, one of which is for “sexual abuse.” Id. at 13. “Sexual abuse” is defined as: “any actual, attempted or alleged sexual conduct by a person, or by persons acting in concert, which causes injury. ‘Sexual abuse’ includes sexual molestation, sexual assault, sexual exploitation -or sexual injury, but does not include ‘sexual harassment.’ ” Id.

2. The GL Coverage

The GL Coverage also includes “volunteers and employees” as insureds, but like the ML Coverage, only for “acts within the course and scope of their employment by [the named insured], membership with [the named insured] or authorized duties on [the named insured’s] behalf.” Ex. I (“GL”) at 10, The GL Coverage contains four types of coverage, two ‘ of which the Village argues are implicated here: GL Coverage A and GL Coverage B. Id. at 1, 5. '

GL Coverage A covers a defense against any suit seeking damages for “bodily injury” (defined ¿s “bodijy injury, sickness or disease -sustained, by a person”) that is [443]*443caused by an “occurrence” (defined as an “accident, including continuous or repeated exposure to substantially the same general harmful conditions”). Id. at 1,15,17.

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151 F. Supp. 3d 438, 2015 U.S. Dist. LEXIS 169475, 2015 WL 9302830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-piermont-v-american-alternative-insurance-nysd-2015.