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Metropolitan Property And Cas. Ins. Co. v. Thomas

Other Lower Courts

December 6, 2007

Metropolitan Property and Casualty Insurance Company, Plaintiff,
v.
Richard F. Thomas, Richard Thomas d/b/a American Plow and Andrew Uffenheimer, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Carol Robinson Edmead, J.

Plaintiff Metropolitan Property and Casualty Insurance Company ("Metropolitan") moves for an order pursuant to CPLR 3212, granting summary judgment declaring that Metropolitan has no obligation to defend or indemnify defendant Richard F. Thomas ("Thomas").

The underlying bodily injury lawsuit was commenced by defendant Andrew Uffenheimer ("Uffenheimer"), in which he alleges that he was injured on January 11, 2005 in or about the driveway of 16 Indian Hill Road, Mahopac, New York when his hand was caused to be crushed under a plow while defendant Richard F. Thomas was conducting and operating a snow plowing business known as American Plow. According to Thomas, Thomas and Uffenheimer were in the process of taking a snow plow off the front of Thomas's pick-up truck when the plow fell on Uffenheimer's hand.

Uffenheimer's bodily injury lawsuit was commenced as against defendants Thomas and American Plow through the filing and service of a summons and complaint dated November 22, 2005.

Metropolitan's Contentions

Metropolitan issued a Homeowner's insurance policy to Thomas which contained the following pertinent provisions:

SECTION II - CONDITIONS

1.Your Duties in the Event of an Accidental Loss. In the event of an occurrence or offense, we have no obligation to provide coverage under this policy if you failto comply with the following duties.

A. Promptly notify us or our representative in writing, stating:

1.your name and policy number;

2.the date, place and circumstances of the accident;

3.the name and address of anyone who might have a claim against you; and

4.the names and addresses of any witnesses

B. Immediately send us any legal papers relating to the accident.

C. At our request, you must:

1.cooperate with us and assist us in any matter concerning a claim or suit;

2.help us to enforce any right of recovery against any person or organization who may be liable to you;

3. attend any hearing or trial; and

4. help us in collecting and giving evidence and obtaining the attendance of witnesses.

SECTION II - LOSSES WE DO NOT COVER

COVERAGE F - PERSONAL LIABILITY AND COVERAGE G - MEDICAL PAYMENTS TO OTHERS

4. Business. We do not cover bodily injury or property damage arising out of or in connection with your business activities. The exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed or implied to be provided because of the nature of the business.

The first notice that Metropolitan received of the incident involving Uffenheimer was through correspondence dated August 15, 2006 from counsel for the defendant/underlying plaintiff Uffenheimer, which enclosed a copy of the summons and complaint.

Through correspondence dated September 14, 2006, Metropolitan issued a denial of coverage for the incident involving Uffenheimer citing the notice condition referenced above as well ...


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