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U.S. Underwriters Insurance Co. v. Falcon Construction Corp.

October 30, 2006

UNITED STATES UNDERWRITERS INSURANCE COMPANY, PLAINTIFF,
v.
FALCON CONSTRUCTION CORP., THE NEW YORK CITY HOUSING AUTHORITY, AND ANA FLORES, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

In this action, plaintiff U.S. Underwriters Insurance Company ("U.S. Underwriters") seeks a determination that it is not obligated to defend or indemnify the New York City Housing Authority ("NYCHA") with respect to a personal injury claim asserted against NYCHA by Ana Flores ("Flores") in state court. Flores was injured when she fell in the vestibule of a NYCHA apartment building being renovated by Falcon Construction Corporation ("Falcon"). The issue is whether U.S. Underwriters must indemnify NYCHA for liability associated with Flores' injury based on two insurance policies issued by U.S. Underwriters: (1) a general commercial liability policy ("GCL policy"), issued to Falcon, under which NYCHA is an additional insured, and (2) an owners and contractors protective liability policy ("OCP policy"), issued to NYCHA.

I. BACKGROUND

A. Procedural History

On August 27, 2003, Judge Swain of this Court, to whom the case was originally assigned, issued an Opinion denying U.S. Underwriters' motion for summary judgment. See U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2003 WL 22019429 (S.D.N.Y. 2003) ("U.S. Underwriters I"). On May 10, 2006, Judge Swain issued an Opinion denying both U.S. Underwriters' motion for partial summary judgment and NYCHA's motion for summary judgment. See U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2006 WL 1292206 (S.D.N.Y. 2006) ("U.S. Underwriters II"). On October 12, 2006, the case was transferred from Judge Swain to the undersigned. The case is scheduled for trial before this Court on December 4, 2006.

B. Present Motion

The Court now addresses defendant NYCHA's motion in limine to preclude U.S. Underwriters from offering evidence that NYCHA failed to notify U.S. Underwriters of the underlying claim in a timely manner under the OCP policy. NYCHA argues that: (1) U.S. Underwriters waived its right to assert a late notice defense, as a matter of law, by failing to disclaim coverage under the OCP policy in a timely manner; (2) evidence of late notice by NYCHA is irrelevant and thus inadmissible under Federal Rule of Evidence 402; and (3) the doctrine of collateral estoppel prevents U.S. Underwriters from relitigating the issue of whether it waived its late notice defense. In response, U.S. Underwriters argues that NYCHA's in limine motion is an inappropriate attempt to relitigate summary judgment issues already determined by the Court. Plaintiff requests that Rule 11 sanctions be imposed against NYCHA's counsel.

For the reasons that follow, defendant NYCHA's motion in limine is denied and plaintiff's request for sanctions is denied.

II. ANALYSIS

A. Standard of Review

"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (citation and internal quotation marks omitted). Evidence should be excluded on an in limine motion only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., 1998 WL 665138, at *3 (S.D.N.Y. Sept. 25, 1998).

B. Analysis of NYCHA's Arguments

1. U.S. Underwriters' Alleged Waiver of Its Late Notice Defense

NYCHA's first argument - that U.S. Underwriters waived its late notice defense as a matter of law - is an improper attempt to relitigate an issue that Judge Swain previously decided in her opinion ...


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