Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DEPASQUALE v. ALLSTATE INS. CO.

January 4, 2002

JOHN A. DEPASQUALE, PLAINTIFF,
V.
ALLSTATE INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

  MEMORANDUM AND ORDER

Presently before the court is Allstate's motion to dismiss. For the reasons set forth below, the motion is granted and the case is dismissed in its entirety.

BACKGROUND

I. The Parties and the Policies of Insurance

Plaintiff is currently a resident of Locust Valley, New York. Prior to relocating to Locust Valley, Plaintiff owned a home located in Bay Shore, New York (the "Bay Shore Home"). Beginning in 1995 and including the time period until Plaintiff sold the Bay Shore Home, he was the named insured under a homeowner's policy of insurance issued by Allstate. Plaintiff also held a personal umbrella policy issued by Allstate. The court refers to these policies collectively as "the Policies."

II. The Sale of Plaintiffs Home and the Buyer's Claims

On March 17, 1999, Plaintiff sold the Bay Shore Home to Sam Leno and Elizabeth York (the "Buyers") for $900,000. After the sale, the Buyers informed Plaintiff of structural damage to the Bay Shore Home. The Buyers attributed the damage to a moisture condition within the structure of the house. According to the Buyers, the water damage was directly attributable to renovations undertaken by Plaintiff in 1991 involving faulty re-cladding of the house with an exterior insulation and finish system. Correspondence written by the Buyers to Plaintiff indicated that the damage to the Bay Shore Home was so great that they intended to demolish the home.

In a letter dated September 13, 1999, Plaintiff advised Allstate of the Buyers' contentions regarding the damage to the Bay Shore Home and told the insurer of the Buyer's intention to demolish the house on September 20, 1999. It appears to the court that the Bay Shore Home was demolished without Allstate having made any inspection of the structure.

III. Prior State Court Litigation

As discussed below, the factual scenario described above has led to the institution of three separate lawsuits that are presently pending in New York State Court.

A. The Buyers' Action Against Plaintiff

After becoming aware of the water damage, the Buyers made a claim for damages directly to Allstate. In a letter dated October 1, 1999, Allstate denied payment of the claim on the ground that their insured was not responsible for the occurrence. Thereafter, on March 27, 2000, the Buyers commenced an action against Plaintiff in New York State Supreme Court, Nassau County. The lawsuit seeks rescission and damages for actual and constructive fraud and alleges that Plaintiff knew of and concealed the water damage to the Bay Shore Home. In their lawsuit, the Buyers seek damages of at least $700,000.

Plaintiff advised Allstate of the lawsuit commenced by the Buyers and requested indemnification and a defense pursuant to the Policies. In a letter dated May 16, 2000, Allstate advised Plaintiff that the allegations set forth in the Buyers' lawsuit did not constitute an "occurrence" within the meaning of the Policies and therefore, denied Plaintiffs request for indemnification and representation. Specifically, Allstate took the position that the allegations set forth an intentional act and not an accidental act for which the Policies would have provided coverage.

B. Allstates Declaratory Judgment Action

After declining coverage, Allstate commenced a State Court declaratory judgment action in Supreme Court, Nassau County, (the "DJ Action") seeking a declaration of the rights of the parties under the Policies. The DJ Action seeks a declaration that Allstate has no duty to defend or indemnify Plaintiff in the action commenced by the Buyers.

C. Plaintiffs Action Against Allstate

Prior to Allstate's institution of the DJ Action, Plaintiff commenced a State Court action directly against Allstate in Supreme Court, Nassau County. In this action, which, essentially, sought to require Allstate to defend Plaintiff in connection with the Buyers' action, Plaintiff alleged twelve separate causes of action against Allstate. The causes of action alleged by Plaintiff in his action against Allstate are set forth in the State Court complaint as follows:

(1) Allstate has refused to pay for Plaintiffs loss and has denied liability under the policies;
(2) Allstate has failed to fulfill its obligations to Plaintiff to act in good faith and with fair dealing;
(3) Allstate has failed to properly or timely investigate the claim;
(4) Allstate acquiesced in the spoliation of evidence;
(5) Allstate failed to assist in the presentation of the claim in accordance with New York law;
(6) Allstate failed to provide proof of loss to Plaintiff;
(7) Allstate failed to disclose the existence of property ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.