The opinion of the court was delivered by: Berman, District Judge.
This is an action by the New York State Insurance Fund
("Plaintiff" or "SIF") brought on its own behalf and on behalf
of its subrogee, Kaback Enterprises, Inc. ("Kaback"). Plaintiff
is seeking a declaratory judgement that defendant Liberty Mutual
Insurance Company ("Defendant" or "Liberty Mutual") must
indemnify Kaback and contribute half of a two million dollar
settlement (i.e. one million dollars) the SIF entered into on
behalf of Kaback on July 28, 2000. The parties have each filed
motions for summary judgment.
The settlement at issue arises from an accident that befell
Steven Flamio ("Flamio"), an employee of Kaback, more than ten
years ago. On December 7, 1991, Flamio, working with employees
of Coolwind Ventilation, Inc. ("Coolwind"), was removing an air
conditioning unit from an elevator motor room when he injured
his back. Kaback had been hired by the property owner
Silverstein Properties, Inc. ("Silverstein"); Kaback, in turn,
hired Coolwind to act as the sub-contractor on the air
At the time of the accident, Kaback was covered by (at least)
two insurance policies, one issued by Liberty Mutual for general
commercial liability, and the other issued by the SIF for
workers' compensation and employers' liability. The Liberty
Mutual policy, which is the subject of this action, covered
"those sums that the insured [Kaback] becomes legally obligated
to pay as damages because of `bodily injury' . . . to which this
insurance applies." (Affidavit of Lek M. Hasan, dated Apr. 25,
2001 ("Hasan Aff."), Exhibit 1). The policy also contained a
number of exclusions, one of which provided that the "insurance
does not apply to . . . `[b]odily injury' to . . . [a]n employee
of the insured arising out of and in the course of employment by
the insured." Id.*fn1
Following the accident, Flamio filed two different lawsuits.
On February 1, 1994, Flamio brought suit against Silverstein and
Coolwind in New York State Supreme Court in the Bronx. Coolwind
Silverstein) filed a third-party claim against Kaback. On
November 6, 1994, Flamio filed a second action, in New York
State Supreme Court in the Bronx, naming Otis Elevator, Inc.
("Otis") as defendant. Otis filed third-party claims against
Kaback, Silverstein and Coolwind, and Silverstein filed
cross-claims against Kaback and Coolwind. On June 9, 1995, the
action against Otis was consolidated with the action against
Silverstein and Coolwind ("Bronx Action"). Flamio's claim
against Otis (and Silverstein's cross-claim against Kaback) was
dismissed on August 23, 1999.
On July 17, 1997, Silverstein filed an action in New York
State Supreme Court in Westchester County, seeking a declaratory
judgment that either Kaback or Liberty Mutual was required to
provide indemnification in the Bronx Action ("Westchester
Action"). Specifically, Silverstein sought an order declaring
either that it (Silverstein) was an "additional insured" under
the Liberty Mutual policy, or that Kaback had violated its
contractual agreement by failing to name Silverstein as an
additional insured. In a decision dated May 13, 1999, Justice
Aldo A. Nastasi found that Silverstein was not an additional
insured under the Liberty Mutual policy and that Kaback had
violated its contractual duty to obtain insurance covering
Silverstein. "Silverstein is entitled to a judgment . . .
declaring . . . that defendant Kaback is responsible to the
plaintiff Silverstein for all resulting damages including
payments in the discharge of liability to Flamio in the
underlying action and for all costs and attorneys fees incurred
by the plaintiff Silverstein in defending said action."
National Union Fire Ins. Co. v. Liberty Mutual Ins. Co., No.
102999, Slip Op. at 5 (Sup.Ct.West. Cty. May 13, 1999).
On June 9, 2000, a jury in the Bronx Action returned a verdict
awarding Flamio $11.745 million, finding Coolwind to be 60
percent liable and Kaback liable for the remaining 40 percent.
Following the verdiet, on July 28, 2000, the parties settled the
Bronx Action, by agreeing to pay Flamio $7.025 million, with
Coolwind paying $5 million, SIF (on behalf of Kaback) paying $2
million and Silverstein paying $25,000.
The instant action — i.e. the fourth action — was originally
filed in New York State Supreme Court in the Bronx and was
removed to this Court on March 1, 2000. Defendant filed a motion
for summary judgment on April 30, 2001. Plaintiff then filed a
cross-motion for summary judgment on July 19, 2001. On August
22, 2001, Liberty Mutual filed a reply memorandum, and SIF also
filed a reply on September 19, 2001.
Summary judgment may not be granted unless "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential
Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial
court's task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
material issues of fact to be tried, not to decide them. Its
duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the
district court of the basis for its motion" and identifying the
matter that "it believes demonstrate[s] the absence of a genuine
issue of material fact." Celotex, 477 U.S. at 323,
106 S.Ct. 2548. The burden then shifts to the
non-moving party which "must set forth specific facts showing
that there is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) (quoting Fed.R.Civ.P. 56(e)); accord Brass v. American
Film Technologies, Inc., 987 F.2d 142 (2d Cir. 1993). The
substantive law governing the case will identify those facts
which are material and "only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson,
477 U.S. at 248, 106 S.Ct. 2505. In determining whether summary
judgment is appropriate, a court must resolve all ambiguities
and draw all reasonable inferences against the moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also
Gallo, 22 F.3d at 1223.
When cross-motions for summary judgment are made the standard
is the same as that for individual motions for summary judgment.
See Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121
(2d Cir. 2001). Each motion must be considered independently of
the other and, when evaluating each, the court must ...