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Erie Painting & Maintenance, Inc v. Illinois Union Insurance Company

June 23, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff, Erie Painting and Maintenance, Inc., ("Erie Painting"), brings this diversity action seeking a declaration that its insurer, Illinois Union Insurance Company ("Illinois Union"), is required to defend and indemnify it in an underlying action pending in New York State court.

Each party now moves for summary judgment, and those motions have produced a torrent of further motions, including disputes about the admissibility of certain pieces of evidence, page-length violations, the use (and font size) of footnotes, and the propriety of sur-replies. All together, there are eight motions pending before this Court; in short, each party's motion for summary judgment will be denied along with four of the remaining six motions.

Some preliminary matters can be addressed first, such as each party's motion to strike the other's memoranda for violations of the Local Rules. (Docket Nos. 58, 62). In contravention of Local Rule of Civil Procedure 7(a)(C), Erie Painting submitted a 23-page reply brief, which Illinois Union moves to strike. A review of this brief, however, reveals that it is excessively long mostly because it largely rehashes, sometimes verbatim, arguments made in Erie Painting's original memorandum of law. Further, this Court finds that Illinois Union would not suffer undue prejudice if the memorandum were permitted because it has had sufficient opportunity to respond to the arguments made therein. Indeed, Illinois Union has submitted at least 60 pages of memorandum in support of its own arguments on summary judgment.

For its part, Erie Painting moves to strike Illinois Union's memoranda for excessive use of small-font footnotes. See L. R. Civ. P. 10(a)(1) ("[A]ll text and footnotes shall be in a font size of at least 12-point type . . . ."). This motion will also be denied. Courts have broad discretion in applying their local rules, Brown v. Board of Trustees of Building Services 32B-J Pension Fund, 392 F. Supp. 2d 434, 446 (E.D.N.Y. 2005), and this Court will deem the papers submitted in their present form.*fn1 The parties are, however, forewarned to scrupulously adhere to the Local Rules in all future submissions, or risk sanction.

Relatedly, Erie Painting's motion to file a sur-reply (Docket No. 67) will be denied, as this Court finds that it has had sufficient opportunity to present its arguments. See, e.g., Kapiti v. Kelly, No. 07 Civ. 3782 (RMB) (KNF), 2008 WL 754686, at * 1 n. 1 (S.D.N.Y. Mar. 12, 2008) ("Allowing parties to submit surreplies is not a regular practice that courts follow, because such a procedure has the potential for placing a court in the position of refereeing an endless volley of briefs" (internal quotation marks and citation omitted)).


A. Facts*fn2

At some point in the late summer of 2008, Illinois Union (through its broker, Colemont Insurance Brokers of Connecticut, LLC, ("Colemont")), issued to Erie Painting, (through Erie Painting's agent, Lawley Agency, LLC ("Lawley")), a general liability insurance policy. (Def.'s State., ¶ 1; Docket No. 44-1.)) The policy required Erie Painting to notify it of any claim "as soon as practicable." (Policy, § 4.2.a, attached as "Ex. A" to Kamoroff Decl.; Docket No. 44-5.) It is this policy that allegedly obligates Illinois Union to defend and indemnify Erie Painting in connection with a lawsuit commenced by the State of New York against Erie Painting -- a lawsuit that has its origin in a September 18, 2008 accident.

On that day, while working at a job site owned by the State of New York along Route 8, Dimitrios Dovas, a seasonal employee of Erie Painting, a family-owned commercial painting contractor, climbed atop an Erie Painting truck, without utilizing a harness, to investigate an unusual noise emanating from the truck's hose. (Pl.'s State., ¶¶ 34, 62-64(a)-(b); Docket No. 45-1.) In the process, he lost his footing, fell to the ground, and hit several objects on the way. (Def.'s State., ¶ 34.) He was immediately rendered unconscious. (Id., ¶¶ 7; Docket No. 44-1; Pl.'s State., ¶ 64(f).)

He thereafter regained consciousness, and immediately refused to visit a hospital. But upon learning that he was unable to operate his own vehicle, informing his boss and owner of Erie Painting -- Markos Bahas -- that his pain registered a 7 or 8 out of 10, and later reporting that his pain "was the highest it could be," his co-workers convinced him otherwise and escorted him to St. Luke's hospital. (Def.'s State., ¶¶ 15, 18, 19.) En route, Dovas informed Erie Painting Superintendent, Paul Gladwin, of the accident. (Id., ¶ 20.) And shortly after his arrival, Bahas visited and spoke with Dovas at the hospital. Erie Painting employees also prepared formal accident reports. (Id., ¶ 34.)

Dovas fell into a coma on his second day at St. Luke's. (Id., ¶ 22.) He remained unconscious for 10 days. (Id., ¶ 23.) During this time, Bahas provided cash and offered Davos' wife use of the company's credit card.*fn3 (Pl.'s State., ¶ 64(k-l).)

Dovas eventually recovered from the coma, and was released from the hospital. He then struggled to pay his medical bills, and in late November, 2008, called Bahas and informed him of his pressing financial situation. (Id., ¶ 49.) Bahas sent a check in the amount of $9,235.00 to assist him. (Id., ¶ 50.) According to Bahas' testimony, these acts, along with a statement allegedly made by Davos' indicating that he did not intend to bring a lawsuit, led Bahas to believe that no litigation would result from the accident. (Id., ¶ 53.) But on December 18, 2008, Davos did file a lawsuit, not against Erie Painting, but against the State of New York, which had an agreement with Erie Painting requiring Erie Painting to defend and indemnify the State for claims arising out of work on the project. (Pl.'s State., ¶ 85; Def.'s State., ¶ 5.)

Presumably anticipating a resultant suit against it pursuant to this agreement, on January 12, 2009, through Lawley, Erie Painting telefaxed Colemont, Illinois Union's broker, an "Acord General Liability Notice of Occurrence/Claim" form, detailing the Dovas accident. (Pl.'s State., ¶¶ 85, 87; Def.'s State., ¶ 54.) Through its "Agency/Company Agreement" ("Agreement") with Illinois Union, Colemont was supposed to forward any notice-of-claim to Illinois Union. (Agreement, § II.B.1, attached as "Ex. G" to Pl.'s Mot. for Summ. J.; Docket No. 45-12.) But eight days later, on January 20, 2009, Lawley contacted Illinois Union and learned that Illinois Union was unaware of the claim. (Pl.'s State., ¶¶ 89-90.) As a result, Colemont quickly emailed the notice-of-claim to Illinois Union that same day. (Pl.'s State., ¶ 91; Def.'s State., ¶ 55.)

Illinois Union disclaimed coverage for the Dovas claim 21 days later, on February 10, 2009, pointing to Erie Painting's late notice-of-claim as the principle reason for this decision. (Pl.'s State., ¶ 104; Disclaimer Letter, attached as "Ex. D" to Kamoroff Decl.) When New York State eventually filed suit against Erie Painting seeking a defense in connection with the Dovas suit, Erie Painting again sought coverage from Illinois Union. (Pl.'s State., ¶ 66.) Illinois Union again disclaimed. (Id.,¶ 67.)

This lawsuit followed.

B. Procedural History

Originally filed in state court on October 9, 2009, Illinois Union removed the suit to this Court on November 2, 2009. (Docket No. 1.) Erie Painting then moved to remand the case back to state court (Docket No. 12), but the Honorable Leslie G. Foschio issued a Report and Recommendation denying that motion (Docket No. 21) and this Court adopted that recommendation (Docket No. 22).

On January 16, 2012, after completion of discovery, Illinois Union moved for summary judgment. (Docket No. 44.) Erie Painting followed suit the next day. (Docket No. 45.) A litany of motions then followed: Illinois Union moved to strike the affidavit of Evie Steinkirchner and the fourth paragraph of the Deborah McMickingaffidavit (Docket No. 50); in response, Erie Painting moved to supplement its Rule 26 disclosures and interrogatory answers (Docket No. 55); Illinois Union subsequently moved to strike Erie Painting's reply memorandum as violative of the Local Rules (Docket No. 58); Erie Painting answered by moving to file an amended reply memorandum and responded in kind with its own motion to strike all of Illinois Union's memoranda as violative of the Local Rules (Docket Nos. 61, 62); finally, Erie Painting moved to file a sur-reply, a supplemental Rule 56.1 statement, and an attorney declaration (Docket No. 67).

Briefing concluded on all these motions on April 20, 2012, at which time this Court took the motions under consideration.


A. Steinkirchner Affidavit

Although several of the pending motions have already been addressed, Illinois Union's motion to strike the affidavit of Evie Steinkirchner (Docket No. 50) remains.*fn4 (Affidavit attached as "Ex. ...

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