UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 2, 2012
MARKEL AMERICAN INSURANCE COMPANY, PLAINTIFF,
DARLENE WALTERS AND JOHN LICHOROWIC, DEFENDANTS.
Plaintiff Markel American Insurance Company (MAIC) commenced this declaratory judgment action seeking to establish that it was entitled to disclaim coverage under a certain maritime insurance policy because defendants Darlene Walters and John Lichorowic breached that policy. (See Compl., Dkt. No. 1.) Pending is MAIC's motion for summary judgment. (See Dkt. No. 8.) For the reasons that follow, the motion is denied.
MAIC contends that the clear and unambiguous terms of the insurance policy demonstrate that coverage would be suspended during a certain period of time if defendants' yacht was not properly "laid up," i.e., it was left afloat; thus, it was permissible for MAIC to disclaim coverage for damage to the yacht that occurred during a time when the policy dictated that the yacht be laid up. (Dkt. No. 8, Attach. 2 at 4-9.) Defendants counter that they did not agree to the term in the policy upon which MAIC relies and that the policy was altered without their knowledge or consent.*fn1
(See Dkt. No. 12; Dkt. No. 12, Attach. 1 at 3-4.) Given the foregoing,
summary judgment is inappropriate at this juncture.*fn2
See Wagner v. Swarts, No. 1:09-cv-652, 2011 WL 5599571, at 4
(N.D.N.Y. Nov. 17, 2011).
ACCORDINGLY, it is hereby ORDERED that MAIC's motion (Dkt. No. 8) is DENIED; and it is further ORDERED that MAIC's letter motion (Dkt. No. 17) is DENIED as moot; and it is further
ORDERED that the parties notify Magistrate Judge Baxter in order to schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to the parties.
IT IS SO ORDERED.