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United States Underwriters Insurance Co. v. Falcon Construction Corp.

April 4, 2007

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



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

In this declaratory judgment action, plaintiff United States 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 Company ("Falcon"). The issue is whether U.S. Underwriters must defend or indemnify NYCHA with respect to the Flores state court action based on two insurance policies issued by U.S. Underwriters: (1) a commercial general liability policy ("CGL 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. 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. U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2003 WL 22019429 (S.D.N.Y. Aug. 27, 2003). 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. U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2006 WL 1292206 (S.D.N.Y. May 10, 2006). On October 12, 2006, the case was transferred from Judge Swain to the undersigned. On October 30, 2006, this Court issued an Opinion denying 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. U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., 2006 WL 3146422 (S.D.N.Y. Oct. 30, 2006).

The case was tried to the Court without a jury, and the parties submitted post-trial briefs and reply briefs. This Opinion sets forth the Court's findings of fact and conclusions of law, in accordance with Federal Rule of Civil Procedure 52(a).

II. FINDINGS OF FACT

The following constitute the findings of fact of this Court, and are based on the trial testimony, exhibits, the statement of undisputed facts in the pretrial order, and proposed findings of fact submitted by the parties.

A. The Insurance Policies

U.S. Underwriters issued a CGL policy, numbered CL 3036359, to Falcon for the policy period of October 20, 1999 to October 20, 2000. NYCHA is an additional insured under the CGL policy.*fn1 Pl. Ex. 1.

The CGL policy includes several relevant limitations and exclusions to coverage. First, the policy limits coverage to claims arising from certain classification codes, namely "Carpentry-Interior" and "Plumbing-Residential" work. See Classification Limitation Endorsement & Policy Declaration, Pl. Ex. 1. Second, the policy excludes from coverage claims arising out of operations performed for any insured by independent contractors, or omissions of any insured in connection with its general supervision of such operations. See Independent Contractors Exclusion, Pl. Ex. 1. Third, the policy excludes coverage for damages incurred by an insured due to assumption of liability in a contract or agreement.*fn2 See Contractual Liability Exclusion, CGL Policy Coverage Form § I.2(b), Pl. Ex. 1.

U.S. Underwriters also issued an OCP policy, numbered CL 3036360, to NYCHA for the policy period of October 20, 1999 to October 20, 2000. The OCP policy does not provide any coverage to Falcon. The OCP policy includes a contractual liability exclusion, but does not include a classification limitation endorsement or an independent contractors exclusion. Pl. Ex. 2.

The CGL and OCP policies both require the insured to notify U.S. Underwriters "as soon as practicable" of a claim or suit brought against the insured, or of an occurrence that could give rise to such a claim or suit. Specifically, both the CGL and OCP policies contain, with immaterial variations,*fn3 the following notice provision:

Duties In The Event Of Occurrence, Claim Or Suit

a. You must see to it that we are notified as soon as practicable of an "occurrence" which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the "occurrence" took place;

(2) The names and addresses of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the "occurrence."

b. If a claim is made or "suit" is brought against any insured, you must:

(1) Immediately record the specifics of the claim or "suit" and the dated received; and

(2) Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or "suit" as soon as practicable.

c. You and any other involved insured must:

(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit";

CGL Policy Coverage Form § IV.2, Pl. Ex. 1; OCP Policy Coverage Form § IV.4, Pl. Ex. 2. The notice provisions in the CGL and OCP policies do not explicitly require the insured to identify a particular policy or policy number when notifying U.S. Underwriters of an occurrence or claim. Id.

Both the CGL and OCP policies appear to have been purchased by Falcon, as required by conditions of the contract between Falcon and NYCHA for renovation of the Patterson Houses.*fn4

B. The Flores Incident, Claim, and Lawsuit

NYCHA owns an apartment building at 314 East 143rd Street in the Bronx, which is part of the Patterson Houses. NYCHA contracted with Falcon to renovate this apartment building, which included the removal and replacement of floor tiles in the lobby. Def. Ex. A; Tr. at 411-12. Falcon subcontracted work on floor tile removal at the Patterson Houses to KZ & V Construction. Pl. Ex. 7.

On February 9, 2000, Flores filed a notice of claim with NYCHA, alleging that she had suffered injuries after tripping and falling in the vestibule of the building on January 9, 2000. The notice of claim alleged that the incident took place at the landing between the security door and exit door of the building ("the incident location"), and that the injury was caused because the landing was "broken, defective, . . . uneven, [and] unlevel." Notice of Claim, Pl. Ex. 9A. On April 20, 2000, Flores filed suit against NYCHA in state court in connection with the July 9, 2000 incident. Pl. Ex. 9A.

In March 2004, NYCHA paid Flores $250,000 to settle her lawsuit. Stipulated Fact No. 3.

C. NYCHA's Investigation of the Flores Claim

On February 11, 2000, NYCHA retained the private investigation firm Robert J. Trobe, C.P.P. ("Trobe") to ...


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