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U.S. Underwriters Insurance Co. v. Calandra

March 19, 2010

U.S. UNDERWRITERS INSURANCE COMPANY, PLAINTIFF,
v.
LUCIANO CALANDRA, CONCETTA CALANDRA, DANIELA CALANDRA, PALMA DELUCA, DIANE ROGER AND JAMES ROGER, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, District Judge

MEMORANDUM AND ORDER

Plaintiff U.S. Underwriters Insurance Company brought this action seeking a declaration that it has no duty to defend or indemnify defendants Luciano Calandra, Concetta Calandra, and Daniela Calandra (the "Calandra Defendants") in a personal injury suit pending before the Supreme Court of the State of New York, Queens County (the "Queens County action").*fn1

Plaintiff moves for summary judgment, arguing that it properly disclaimed coverage for the injury because the Calandra Defendants failed to provide timely notice of the accident as was required by the governing insurance policy. The Calandra Defendants oppose summary judgment on the grounds that there are genuine issues of material fact in dispute as to this notice-of-occurrence question. For the reasons set forth below, the court grants plaintiff's summary judgment motion, and declares that plaintiff has no duty to defend or indemnify the defendants in the Queens County action.

I. Background

On the morning of February 21, 2007, Diane Roger was walking along Grand Avenue in Queens, New York. (Roger Dep. at 10, 15--16.) The sidewalk on which she was walking abutted a commercial property, 7120 Grand Avenue, which was owned by the Calandra Defendants and occupied by the Calandras' tenant, Alliance Glass, an auto glass-repair business. (Velez Dep. at 4.) The deposition testimony differs as to the condition of the sidewalk that morning, with Diane Roger stating that there was only a poorly-cleared path through the snow, and Raymond Velez, the owner of Alliance Glass, stating that he had cleared it completely the night before, pursuant to his standing agreement with the Calandras to do so. (Id. at 11--16.) While walking on this sidewalk, Diane Roger slipped and fell, injuring herself to the extent that she was unable to stand unaided. (Roger Dep. at 54--59.) She was taken by ambulance to St. John's Hospital, where a doctor determined that she had fractured her pelvis. (Id. at 66--68.)

After learning of the accident, Linda Daquaro,*fn2 Roger's daughter, went to Alliance Glass and spoke with Velez. (Daquaro Dep. at 14.) She informed Velez of the accident, including the fact that an ambulance had taken her mother to the hospital. (Velez Dep. at 19--21.) Daquaro asked Velez for the telephone number of the property owner, which he gave to her; according to Daquaro, this transaction occurred the morning of the accident, whereas Velez stated that he gave her the Calandras' information when she returned the following day. (Compare id. at 23--24, with Daquaro Dep. at 22.) Velez stated in his deposition that Daquaro wanted to contact the landlord because "[s]he wanted to contact his insurance." (Velez Dep. at 26.)

Following Daquaro's visit, Velez called Luciano Calandra to "let him know that some woman fell" on the sidewalk that morning. (Velez Dep. at 35; see also Calandra Dep. at 29--30.) Luciano testified that he in turn called his sister-in-law, Concetta ("Connie") Calandra, and told her to inform their insurance broker about the incident. (Calandra Dep. at 50--55.) Luciano further stated that "if somebody fell, both [he and Concetta] should know to go in and tell the insurance company to cover, make sure the insurance company would know about it." (Id. at 51.) According to Luciano, Concetta said that she would notify the insurance broker. (Id. at 53.) Concetta also spoke directly to Velez, telling him to give Daquaro her phone number if Daquaro returned to Alliance Glass. (Velez Dep. at 41--42.) Velez sent her copies of pictures he had taken of the sidewalk. (Id. at 37.) Luciano stated his belief that Concetta later forwarded these pictures to the insurance company, although he did not know when this might have occurred. (Calandra Dep. at 61.)

The record is unclear as to whether the Calandra Defendants ever spoke directly to Linda Daquaro or Diane Roger about the incident. Daquaro stated that she spoke to Luciano Calandra by phone from the hospital the morning of the accident, while Luciano denied that such a conversation took place. (Compare Daquaro Dep. at 40, with Calandra Dep. at 31--32.) Daquaro admitted that she never offered Velez or the Calandras any contact information for herself or her mother. (Daquaro Dep. at 40, 42.) However, she stated that she knew Velez from the neighborhood, and Velez confirmed that he had had past dealings with Daquaro. (Daquaro Dep. at 15--16; Velez Dep. at 21--22.)

On August 6, 2007, counsel for Diane and James Roger notified Luciano Calandra of a possible lawsuit regarding Diane's injury. (Aff. of Leslie Romasco in Supp. of Mot. for Summary Judgment ("Aff."), Ex. 2 at 3.) On August 13, 2007, Concetta Calandra sent a letter to the Calandras' insurance broker, Eric Weiner, advising him of this potential litigation. (Id., Ex. 2 at 3.) According to plaintiff, this was the first notice they had ever received of the accident. (Id. at 4.) On September 5, 2007, plaintiff informed the Calandra Defendants that it would investigate the Rogers' claim, while reserving "its rights to disclaim coverage based on failure to provide timely notice of the claim." (Id., Ex. 4 at 3.) Following its investigation, plaintiff disclaimed coverage in a letter to the Calandra Defendants dated September 24, 2007. (Id., Ex. 6.) This disclaimer was based on a provision of the insurance policy issued by plaintiff, in effect at all relevant times, which required the Calandra Defendants to notify plaintiff "as soon as practicable of an 'occurrence' or an offense which may result in a claim." (Aff. at 2; see generally id., Ex. 1.) According to the policy:

To the extent possible, notice should include:

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

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

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

(Aff. at 2.) The policy further defines an "occurrence" as "an accident." ...


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