The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is a diversity action in which plaintiff Graves Brothers, Inc. ("plaintiff"), a construction contractor, is seeking, inter alia, a declaration that the defendant insurance company, National Fire & Marine Company ("defendant"), is, by the terms of a commercial general liability ("CGL") insurance policy which it issued, contractually obligated to defend and indemnify plaintiff in an underlying lawsuit. Now before the Court is defendant's motion [#6] for judgment on the pleadings as to plaintiff's fifth cause of action. For the reasons that follow, the application is granted.
In this action plaintiff claims to be entitled to a defense as an additional insured under the CGL policy issued by defendant. The underlying lawsuit arises from the extremely unfortunate death of roofing laborer, Troy Robertson ("Robertson"), who died as a result of a fall. In that regard, plaintiff was the general contractor on a renovation project in the City of Rochester, and Robertson's employer, Kevin VanVranken Contracting, Inc. ("VanVranken") was the roofing sub-contractor. While working on the subject property, Robertson slipped and fell, and subsequently died at the hospital from his injuries. Robertson's executrix subsequently sued plaintiff, VanVranken, and the property owner. VanVranken had purchased a CGL policy from defendant, in which plaintiff was listed as an additional insured. Within a few days after the accident, plaintiff requested that defendant provide a defense pursuant to the policy, but defendant disclaimed any duty to defend. After making several unsuccessful attempts to convince defendant that it was contractually obligated to provide a defense, plaintiff commenced the subject action.
The first four causes of action in plaintiff's complaint purport to state causes of action for: 1) a declaratory judgment that defendant has a duty to defend; 2) a declaratory judgment that defendant has a duty to indemnify; 3) breach of contract; and 4) a declaratory judgment that defendant is obligated to pay amounts in excess of the policy limits. The fifth cause of action, on the other hand, purports to state a claim for "insurer bad faith." More specifically, plaintiff alleges, in relevant part:
Graves Brothers' repeated demands for National to comply with its contractual obligations as respects Mr. Robertson's accident, injuries, and lawsuit have been met with unjustifiable disclaimers based on frivolous grounds which evince either a profound ignorance, or an utter disregard, of the terms and meanings of National's own policy and long-standing New York law.
National's response to Graves Brothers' coverage claim demonstrates a gross disregard of the interests of its additional insured and constitute a pattern of behavior showing a conscious or knowing indifference to the probability that Graves Brothers may be held personally accountable in the Robertson wrongful death action . . . .
National's actions violate its obligation to act in good faith and constitute insurer bad faith. (Complaint ¶ ¶ 81-83). This claim is pleaded separate and distinct from plaintiff's breach of contract claims. (See, Pl. Memo of Law [#13] p. 3) ("The facts supporting Graves Brothers' Bad Faith Claim are distinct from the facts supporting Graves Brothers' Breach of Contract Claims.")
Defendant contends that the fifth cause of action must be dismissed because the State of New York does not recognize an independent tort based upon insurer bad faith. Plaintiff, however, contends that the motion should be denied as premature, since a separate motion for partial summary judgment filed by plaintiff in this action is now pending before the Court, and the determination of that motion may render defendant's application moot.*fn1 Alternatively, plaintiff contends that its claim is actionable, because it is based not on the insurance contract, but on defendant's "conduct outside the contract but intended to defeat the contract." (Pl. Memo [#13] p. 4).
Counsel for the parties appeared before the undersigned for oral argument of the motions on January 11, 2007. The Court has now thoroughly considered the parties' ...