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CONTINENTAL INS. CO. v. ESTATE OF NICHOLAS S. BENT

August 30, 1995

CONTINENTAL INSURANCE COMPANY, Plaintiff, against ESTATE OF NICHOLAS S. BENTON, d/b/a THE RIGGING GANG, HOLLAND VILLAGE, INC., DOMINO'S PIZZA, INC., and DEBORAH K. BENTON, Defendants.


The opinion of the court was delivered by: LEE P. GAGLIARDI

 Opinion and Order

 GAGLIARDI, Senior D.J.

 Plaintiff filed this declaratory judgment action seeking the resolution of questions regarding insurance coverage. Plaintiff and defendants have moved for summary judgment. For the reasons set forth below, plaintiff's motion for summary judgment is granted and defendants' motion is denied.

 I. FACTS

 Some of the issues involved in this case were previously covered in this court's opinion in Domino's Pizza, Inc. v. Estate of Nicholas S. Benton, d/b/a The Rigging Gang, 91-CV-1057, dated December 7, 1994, and amended on January 4, 1995, familiarity with which is assumed, and the following facts were stipulated to by the parties or found by the court.

 Defendant Nicholas Benton owned, as sole proprietor, a business known as Benton d/b/a The Rigging Gang ("The Rigging Gang"). Among other things, The Rigging Gang constructed and serviced sailing ships. Prior to July 1988, defendant Holland Village, Inc. ("Holland") contracted with The Rigging Gang to build a replica of Henry Hudson's "Half Moon" at a dock in Albany, New York. In late June 1988, The Rigging Gang applied to plaintiff Continental Insurance Company ("Continental"), through an agent, for two insurance policies: a Workers Compensation and Employers Liability policy ("WC policy") and a Commercial General Liability policy (hereinafter "CGL policy"). Continental subsequently issued these policies.

 Relevant to this opinion are specific representations made by The Rigging Gang in relation to the CGL policy. In the application, The Rigging Gang described the type of work as "boat builder." The risk to be insured "involves construction of a vessel." The CGL policy itself provides a business description of "boat builders," and the classification of insurance is "boat or ship bldg." No mention was made of any other type of work, such as servicing.

 From July 1, 1988 to June 19, 1989, The Rigging Gang worked continually on the "Half Moon" project, which was scheduled for completion in July 1989. The number of workers that The Rigging Gang employed on this project ranged from three to twelve during this period.

 Some time before June 19, 1989, defendant Domino's Pizza, Inc. ("Domino's") hired The Rigging Gang to perform rigging work on the vessel "Domino Effect" at a port in Rensselaer, New York. In order for the vessel to pass through the New York Barge Canal, the mainmast had to be unstepped and later restepped at Oswego. Domino's hired Benton, owner of the Rigging Gang and an experienced rigger, to perform these services. On June 19, 1989, Benton was loosening the mainmast when it snapped near its base. As a result, the mainmast fell and struck the stringpiece, carrying Benton with it. Benton also struck the stringpiece, causing serious injuries from which he died shortly thereafter.

 II. Standard for Summary Judgment

 Summary judgment shall be granted if "there is no genuine issue as to any material fact and. . .the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must "view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. . . ." Gallien v. Connecticut Gen. Life Ins. Co., 49 F.3d 878, 882 (2nd Cir. 1995) (citing ...


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