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Cohen v. Utica First Insurance Co.

June 29, 2006

RICHARD COHEN, PLAINTIFF,
v.
UTICA FIRST INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Richard Cohen commenced the present action against defendant Utica First Insurance Company ("Utica First") seeking to recover the value of an insurance policy between Utica First and Mario's Painting Corporation ("Mario's Painting"), a contractor working on plaintiff's home at the time that plaintiff's home, while under construction, was destroyed by fire on August 12, 1998. At the time of the fire, Mario's Painting was the insured under a policy issued by Utica First and sold to Mario's Painting Corporation by George Wagner Associates, Inc. ("George Wagner Assocs."). On or about March 23, 1999, plaintiff commenced an action in the Supreme Court of the State of New York, County of Nassau, entitled Richard Cohen and Ava Cohen v. Mario Industries, Inc., Maison de France, Inc. Mario's Painting Corp., Two M. Lighting Design Ltd., et al., No. 99-7127 (N.Y. Sup. Ct. 2002) (the "underlying action"), which resulted in a default judgment against Mario's Painting. At the inquest, a judgment of $8,733,543.69 was entered against Mario's Painting. Plaintiff now seeks to enforce Utica First's duty to indemnify Mario's Painting with respect to the judgment obtained in the underlying state action. Defendant moves for summary judgment on the ground that George Wagner Assocs. was not authorized by Utica First to receive notice of an occurrence from Mario's Painting, and that written notice of the fire, received by Utica First on April 8, 1999, is untimely as a matter of law.

I. BACKGROUND

The action arises from a fire on August 12, 1998 that destroyed the house of plaintiff Richard Cohen ("Cohen" or "plaintiff"), located at 103 North Cliff Drive, Centre Island, New York (the "property"). (Pl.'s Compl. ¶ 7.) At the time of the fire, various contractors were working on the property, including Mario's Painting. (Pl.'s Compl. ¶ 6.) Mario's Painting was formed in or about 1997, with Mario Llobell ("Mr. Llobell") as President and Cindy Llobell ("Mrs. Llobell"), Mr. Llobell's wife at the time, as Secretary and Vice-President. (Def.'s Rule 56.1 Statement ¶¶ 5-7; Pl.'s Rule 56.1 Statement ¶¶ 5-7.) Prior to the date of the fire, Mario's Painting had obtained a commercial general liability policy with Utica First in the amount of $300,000 per occurrence, which was in effect at the time of the fire. (Utica First Policy ART 1122955 00 ("Mario's Painting Insurance Policy"), annexed as Exh. 7 to Declaration of Jay B. Itkowitz in Supp. of Richard Cohen's Opp'n to Utica First Insurance Company's Motion for Summary Judgment ("Itkowitz Decl").)

On March 23, 1999, the plaintiff commenced a negligence action in Supreme Court, Nassau County (the "underlying action"), against certain contractors who had been working on the property at the time of the fire, including, inter alia, Mario Industries, Inc. ("Mario Industries"), the general contractor on the property, and Mario's Painting, a subcontractor.*fn1 On or about March 26, 1999, Mario's Painting was served with a summons and complaint in the underlying action. (Summons and Complaint in Richard Cohen, et al. v. Mario Industries, Inc., et al., No. 99-7127 (N.Y. Sup. Ct. 2002), annexed as Exh. 13 to Itkowitz Decl.) On March 31, 1999, Mario's Painting sent a letter and a copy of the summons and complaint to George Wagner ("Mr. Wagner") of George Wagner Assocs., the insurance broker through whom Mario's Painting had purchased the Utica First insurance policy. (Letter from Cindy Llobell of Mario's Painting to George Wagner of George Wagner Associates, dated March 31, 1999, annexed as Exh. 10 to Itkowitz Decl.) By letter dated April 13, 1999, Utica First informed Mario's Painting that it received a "general liability notice of occurrence" on April 8, 1999, which contained Mario Painting's March 31, 1999 letter to Mr. Wagner and the summons and complaint in the underlying action. (Letter from Gordon Riebe of Utica First to Mario Llobell of Mario's Painting, dated April 13, 1999, annexed as Exh. 12 to Itkowitz Decl.) The letter stated that because Mr. Llobell knew about the fire occurrence on August 13, 1998 and failed to timely report it to Utica First, Utica First could not defend nor indemnify Mario's Painting. (Id.)

Thereafter, on March 16, 2000, Mario's Painting answered the complaint and commenced a third party action against Utica First (the "third party action") seeking defense and indemnification against potential liability asserted by the plaintiff in the underlying action. (Third-Party Verified Complaint, annexed as Exh. 14 to Itkowitz Decl.) In February 2002, plaintiff Cohen moved for leave to intervene in the third party action. (Pl.'s Compl. at 10.) Utica First moved to dismiss the third party action on the ground that Mario's Painting had failed to appear at court conferences and failed to retain counsel as directed by the court. (Id.) By order of the Honorable Anthony J. Parga, J.S.C., dated February 28, 2002, plaintiff's motion to intervene in the third-party action pursuant to CPLR §§ 1012(a)(3) and 1013 was denied, because the insurance policy issued by Utica First to Mario's Painting states that no party may sue Utica under the policy prior to obtaining a judgment against its insured, Mario Painting Corp., which had yet to occur. (Order by Hon. Anthony J. Parga, J.S.C., dated February 28, 2002, at 2, annexed as Exh. 15 to Itkowitz Decl.; see also Order by Hon. Anthony J. Parga, J.S.C., dated May 28, 2002, at 2, annexed as Exh. 16 to Itkowitz Decl. (denying plaintiffs' motion for an order granting reargument of the court's February 28, 2002 order).) On the same date, Judge Parga also granted Utica First's motion to dismiss the third party action without opposition, based on third-party plaintiff Mario's Painting's failure to retain new counsel and failure to appear for court conferences. (Id.) In the February 28, 2002 order, Judge Parga observed that on December 4, 2000, Mario's Painting had filed a petition under Chapter 7 of the United States Bankruptcy Code, and listed as unsecured claims the claims made by the plaintiffs and co-defendants in the underlying state action. (Id.) Judge Parga noted that at the time, the court could not discern from the motion papers submitted whether all of the parties' claims against Mario's Painting were discharged by the United States Bankruptcy Court.*fn2

The underlying action was settled against Mario Industries for $2,075,000.00, and the action was discontinued. as to that entity. (Pl.'s Mem. in Opp'n at 4.) On December 12, 2003, Judge Parga issued an order of default against Mario's Painting and scheduled an inquest for January 27, 2004. (Order by Hon. Anthony J. Parga, J.S.C., dated December 12, 2003, annexed as Exh. 3 to Pl.'s Compl.) Following the inquest, by order dated February 17, 2004, a judgment against Mario's Painting was entered in the amount of $8,733,543.69. (Order by Hon. Anthony J. Parga, J.S.C., dated February 17, 2004, annexed as Exh. 17 to Itkowitz Decl.) at 2.) According to the plaintiff, this amount represents $9,384,934.04-- the amount requested, set off by the $2,075,000.000 plaintiff received from his settlement with Mario Industries, plus interest as of December 31, 2001. (Pl.'s Mem. in Opp'n at 5.)

On April 9, 2004, plaintiff commenced the instant lawsuit, seeking to recover the full amount of Mario's Painting's insurance policy with Utica First ($300,000 per occurrence, here, $600,000.00), pursuant to New York Insurance Law § 3420.*fn3 (Pl.'s Compl. 7-8.) On November 17, 2005, Utica First filed the instant motion for summary judgment, seeking an order declaring that "(1) George Wagner Associates, Inc. is not an agent of Utica First Insurance Company for notice and (2) Mario's Painting Corp. failed to provide Utica First Insurance Company with timely notice as a matter of law." (Notice of Mot. of Utica First Insurance for Summary Judgment at 1.)

While defendant does not raise the argument of estoppel, it bears brief mention at the outset.*fn4 "Collateral estoppel applies when the party against whom it is sought had a full and fair opportunity to contest the decision claimed to be dispositive of the present action, and the issue in the prior action is identical to the issue in the current action." JCD Int'l Gem Corp. v. Evanston Ins. Co., No. 94 Civ. 5315, 1995 WL 491337, at * 4 (S.D.N.Y. Aug. 17, 1995) (citing Gramatan Home Invest. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 311 (1979)).

For the doctrine to apply, the defendant here (Utica First) need not have been named in the prior action, as long as it was in privity with the defendant in the prior action (Mario's Painting). However, even if plaintiff here could demonstrate that Utica First was in privity with Mario's Painting in the prior action, because the prior action resulted in a default judgment, plaintiff cannot not demonstrate that issues related to Mario's Painting policy with Utica First were adjudicated in that action, and thus identical with that action. JCD Int Gem Corp., 1995 WL 491337, at * 5. "Unless the court issuing the judgment considered and ruled on the policy, defendant is not collaterally estopped to assert defenses based on the terms of the policy between it and [its insured]." Id. See also Perez v. Nationwide Mut. Fire Ins. Co., No. 01 Civ 2135, 2001 WL 716924, at *2 (S.D.N.Y. June 25, 2001) (rejecting plaintiff's argument that the state court judgment by default gives rise to collateral estoppel on any issues going to the merits of the underlying claim); Robbins v. Michigan Millers Mut. Ins. Co., 236 A.D.2d 769, 653 N.Y.S.2d 975 (N.Y. App. Div. 3rd Dep't 1997) (same).

II. FACTS

A. Issuance of the Utica First Insurance Policy and Notice of Loss Procedures

1. Deposition Testimony of Mario and Cindy Llobell

At the time of the fire, Mario's Painting was owned and operated by Mario Llobell ("Mr. Llobell"),who testified that he was the president of the corporation and that his wife at the time, Cindy Llobel ("Mrs. Llobell"), was the vice-president and handled all of the paperwork. (Deposition of Mario V. Llobell ("Mr. Llobell Dep."), dated April 13, 2005, at 5-6.) Mr. Llobell testified that he formed Mario's Painting in or about 1997 (id. at 27), and that his company was hired by Mario Industries in 1998 (the general contractor, unrelated to Mario's Painting) to do painting work at plaintiff's house. (Id. at 8-9.) From approximately July 24, 1997 to July 24, 1998, Mario's Painting was insured under a general liability insurance policy issued by Maryland Casualty Insurance Company ("Maryland Casualty"). (Utica First 56.1 Statement ¶ 8; see Mr. Llobell Dep. at 30-31; Deposition of Cindy Llobell ("Mrs. Llobell Dep."), dated April 19, 2005, at 5.) Mr. Llobell testified that in July of 1998, his wife went to the offices of George Wagner Associates, Inc. ("George Wagner Assocs.") to meet George Wagner ("Mr. Wagner") to purchase a new insurance policy. (Mr. Llobell Dep. at 30.) Mr. Llobell testified that his wife hand delivered two checks to pay in full for a one year insurance policy, effective July 24, 1998 to July 24, 1999. (Id. at 31-33, 121.) Mr. Llobell testified that the policy was with Utica First, and that it took effect immediately upon the expiration of the Maryland Casualty policy-- approximately ten days before the fire occurred. (Id. at 31.)

Mrs. Llobell testified at her deposition that she went to meet Mr. Wagner of George Wagner Assocs. to obtain a new insurance policy (Mrs. Lobel Dep. at 23-24, 36.) She testified that she gave him a check made out to George Wagner Associates, and that her understanding upon leaving Mr. Wagner's office that day was that Mario's Painting had general liability insurance coverage. (Id. at 38.) She first testified that Mr. Wagner told her he was going to place the policy with a company she recalled as "Utica," but she later testified that she did not recall if she was told the name of the company issuing the policy. (Id. at 35,38.) Mrs. Llobell also testified that Mr. Wagner did not tell her he was an agent for Utica First. (Id. at 37, 41.) When asked if she understood at the time that George Wagner Assocs. was an insurance broker company, she testified, "I don't know the difference between an agent. I would not have thought back then if he was an agent or broker. I just knew that he sold insurance." (Id. at 37-38.)

Mrs. Llobell testified that prior to the fire that occurred on August 12, 1998, Mario's Painting had received a "cover sheet and page that told us what our limits were," which she thought was the policy.*fn5 (Id. at 39, 54.) She testified that prior to August 12, 1998, Mario's Painting never received a complete copy of the Utica First ...


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