Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Assunta, Inc. v. Penn-America Insurance Co.

January 7, 2010


The opinion of the court was delivered by: Gary L. Sharpe District Court Judge


I. Introduction

Plaintiff Assunta brought this action against defendant Penn-America, alleging that Penn-America is obligated to defend and indemnify Assunta in an underlying personal injury action brought by third-party Robert Gloria. (See generally Dkt. No. 1:2.) Pending are Assunta's motion for summary judgment, (Dkt. No. 5), and Penn-America's cross-motion for summary judgment, (Dkt. No. 12).Both parties seek a declaratory judgment under FED. R. CIV. P. 57 regarding Penn-America's obligations to Assunta. For the reasons that follow, Assunta's motion is denied and Penn-America's cross-motion is granted.

II. Background

Assunta, Inc. is a domestic corporation organized and existing under New York State law with its principal place of business in New York. (See Pl. Compl. ¶ 1, Dkt. No. 1:2.) Assunta owns and operates Bogies, a tavern located in Albany, New York. (See Pl. SMF ¶ 1, Dkt. No. 9.) Penn-America Insurance Company is organized and domiciled in the State of Pennsylvania. (See Notice of Removal ¶ 6, Dkt. No. 1.) Penn-America issued a commercial general liability insurance policy to Assunta, the named insured, covering Bogies' premises for the period of August 27, 2005, to August 27, 2006. (See id. at ¶ 2.)

Under the insurance policy, coverage is excluded for damages that arise from an "assault," "battery," or "physical altercation" occurring on Bogies' premises.*fn2 (McWilliams Aff., Ex. A at 81, Dkt. No. 18:2.) The policy defines "physical altercation" as "a dispute between individuals in which one or more persons sustain bodily injury arising out of the dispute." (Id.) The policy also provides a liquor liability exclusion, according to which Assunta is not entitled to coverage for:

"Bodily injury" or "property damage" for which [Assunta] may be held liable by reason of (1) [c]ausing or contributing to the intoxication of any person; (2) [t]he furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) [a]ny statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. (McWilliams Aff., Ex. A at 82, Dkt. No. 18:2.)

The policy requires Assunta to notify Penn-America about any "'occurrence' or an offense which may result in a claim... as soon a[s] practicable...." (McWilliams Aff., Ex. A at 16, Dkt. No. 18:2.) Moreover, whenever "a claim is made or 'suit' is brought against [the] insured," Assunta is required to notify Penn-America "as soon as practicable." (Id. at 16.) And upon receiving "any demands, notices, summonses or legal papers received in connection with the claim or 'suit,'" Assunta must "[i]mmediately send... copies" to Penn-America. (Id.)

On June 2, 2006, third-party Robert Gloria brought an action in New York State Supreme Court, Suffolk County, for injuries allegedly sustained as a result of Assunta's negligence. (See Gloria Compl., Dkt. No. 1:2.) Gloria alleged that he was injured in an altercation while a patron of Assunta's club on December 9, 2005. In his first cause of action, Gloria claimed that Assunta breached its duty owed to Gloria by causing and creating a dangerous condition in the club.*fn3 (See id. at ¶¶ 40-57.) In his second cause of action, Gloria alleged that Assunta violated N.Y. GEN. OBLIG. LAW §§ 11-101 and 11-103 by failing to adequately monitor its patrons and by serving alcoholic beverages to already intoxicated patrons. (See id. at ¶ 60-61.) Third, Gloria claimed that Assunta had a "conscious objective" to engage in the actions and conduct alleged, which thereby caused severe emotional distress. (See id. at ¶ 65.)

According to Assunta, it first became aware of the Gloria incident after March 6, 2006, when it received a letter from Gloria's counsel. (See Pl. SMF ¶ 6, Dkt. No. 9 (citing Pl. Ex. 4, Dkt. No. 6:2).) Assunta responded to Gloria's counsel on March 10, 2006. (See Pl. Ex. 5, Dkt. No. 6:2.) Assunta notified Penn-America of the incident on April 18, 2006.*fn4 (See Def. Mem. of Law at 13, Dkt. No. 19; see also Pl. SMF ¶ 7, Dkt. No. 9.) Penn-America issued a disclaimer to Assunta on April 25, 2006, disclaiming coverage with regards to the Gloria dispute. (See Pl. Resp. SMF ¶ 7, Dkt. No. 20; see also Def. SMF ¶ 27, Dkt. No. 15.)

On March 9, 2009, Assunta filed suit against Penn-America in New York State Supreme Court, Albany County, seeking a declaratory judgment under N.Y. C.P.L.R. § 3001 that Penn-America was obligated to defend and indemnify Assunta in the Gloria action. (See Assunta Compl. ¶¶ 5, 12, Dkt. No. 1:2.) Assunta first notified Penn-America of Gloria's underlying suit when it served Penn-America with the summons and complaint for the coverage action on March 17, 2009. (See Def. SMF ¶ 28, Dkt. No. 15; see also Pl. Resp. SMF ¶ 7, Dkt. No. 20.) On March 19, 2009, Penn-America sought removal of this action to the United States District Court for the Northern District of New York based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). (See Dkt. No. 1.) The present action was removed to this court on March 26, 2009.*fn5

III. Standards of Review

A. Summary Judgment

The standard for the grant of summary judgment is well established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.