The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Super Laundryland, Inc. and Daniel Ho Ra seek a Declaration that insurer, U.S. Underwriters Insurance Company, owes a defense and indemnification to Plaintiffs in connection with the underlying personal injury litigation brought by David Frazer in the Supreme Court of the State of New York, Bronx County ("underlying action"). For the following reasons, I grant the declaration to Super Laundryland, Inc., the signatory to the insurance contract.
Insurance Policy # CL3089610
Plaintiff procured a general insurance policy*fn2 from Defendant. (Trial Transcript ("Tr.") 33.) All policy premiums were paid and up to date. (Id. at 59.) Amy French, U.S. Underwriters Claims Examiner, confirmed that the policy was in effect on June 17, 2006, the date of Mr. Frazer's accident. (Id. at 125.) Plaintiff's insurance policy required that the insured notify the insurer as soon as practicable of an occurrence or an offense and that, "[i]f a claim is made or a 'suit' is brought against any insured, you must: (1) Immediately record the specifics of the claims or 'suit' and the date received; and (2) Notify us [U.S. Underwriters] as soon as practicable." (Plaintiff's Post-Trial Memorandum of Law ("Pl. Mem.") 2-3.)
On June 17, 2006, Frazer fell and injured himself at Super Laundryland. (Compl. ¶ 23, Ex. 2.) Super Laundryland had only opened for business six months before Frazer's accident. (Tr. at 30.) Super Laundryland had been inspected and approved by the appropriate building departments before opening its doors. (Id. at 37-8.) Ra installed rugs on the stairs and ensured that they were checked daily by either himself or his employees, as part of the complete store inspection, to make certain that they were not slippery and remained properly affixed to the stairs. (Id. at 88.) Prior to Frazer's incident, neither customers nor employees of Super Laundryland had complained to Ra about the condition of the stairs and Ra was not aware of any prior slip and fall incidents. (Id. at 41.)
Frazer fell down a small staircase in Super Laundryland after swinging his laundry bag around his shoulder. (Surveillance Video of the Incident, Exhibit ("Ex.") 11.) Ra learned of Frazer's incident from his employee Ms. Mora. (Tr.at 42.) Mora told Ra that she had overheard Frazer say that he fell because of his bag and that the EMT checked the stairs and found them to be in satisfactory condition. (Id. at 42-3, 213, 284, 288.) Additionally, Mora told Ra that she called an ambulance for Frazer because he did not get up off the ground for fifteen to twenty minutes, however, he was not yelling or screaming in pain. (Id.) Frazer was removed from Super Laundryland by EMS. (Id. at 43.)
Ra reviewed surveillance footage of the incident and saved a brief portion of the footage that showed Frazer entering and falling down. (Id. at 44; see Ex. 11.) Despite Ra's testimony, in which he explained that he is unsure why he saved the footage, Defendant asserts that the "only" reason to have saved the footage is to prepare for potential litigation. (Tr. at 46; see Defendant's Post-Trial Memorandum of Law ("Def. Mem.") 5.)
Frazer had never complained about the condition of the stairs or the rugs slipping under him before the date of his accident. (Id. at 223.) Additionally, Frazer did not observe any wetness or debris on or about the stairs either before he fell or immediately after. (Id. at 223.) There was no communication between Frazer or anyone claiming to represent him and Super Laundryland from the date of the incident until Super Laundryland was served with the summons and complaint for the underlying action in late August. (Id. at 52-3.) U.S. Underwriters first received notice of Super Laundryland's claim for coverage surrounding the Frazer incident on or about September 1, 2006. (Ex. E.) U.S. Underwriters issued a letter disclaiming coverage to Super Laundryland for claims arising out of the Frazer incident on September 27, 2006. (Ex. L.)
The policy language is to be construed in accordance with New York law. 2006 SRI v. WTCP, 2006 WL 3073220, at *5.
Obligation of an Insurance Company to Defend & Indemnify Insured
Generally, an insurance company has an obligation to defend its insured from claims covered by the policy*fn3 and to indemnify the insured in the event of an incident. See generally Union Ins. Co. v. Int'l Flavors & Fragrances, Inc., 822, F.2d 267, 273 (2d Cir. 1987). However, specific notice provisions in the insurance contract limit this obligation. "Compliance with notice requirements set forth in an insurance contract is a condition precedent to recovery under New York law, and a failure by the insured to comply with such requirements relieves the insurer of liability." Utica Mut. Ins. Co. v. Fireman's Fund Ins. Co., 748 F.2d 118, 121 (2d Cir. 1984). Notice is to be given "as soon as practicable" after an occurrence*fn4 when considering all of the facts and circumstances surrounding the event. See id. at 122. "The test for determining whether the notice provision has been triggered is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim." Commercial Union Ins. Co., 822, F.2d at 272. "As soon as practicable" is a term of art used to describe whether or not an insurance company received timely notice of an occurrence or claim. Aurelio Argentina v. Otsego ...