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Jannie Nesmith, In Her Representative Capacity Only As Parent and Natural Guardian of v. Allstate Insurance Company

February 1, 2013

JANNIE NESMITH, IN HER REPRESENTATIVE CAPACITY ONLY AS PARENT AND NATURAL GUARDIAN OF
JANNIE PATTERSON, AN INFANT AND LORENZO PATTERSON, JR.,
PLAINTIFFS-RESPONDENTS,
v.
ALLSTATE INSURANCE COMPANY,
DEFENDANT-APPELLANT.



Appeal from a judgment (denominated order) of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered October 27, 2011.

The opinion of the court was delivered by: Smith, J., J.

Nesmith v Allstate Ins. Co.

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on February 1, 2013

PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND WHALEN, JJ.

OPINION AND

The judgment, insofar as appealed from, denied defendant's motion for summary judgment and granted that part of the plaintiffs' cross motion seeking a declaration.
It is hereby ORDERED that the judgment insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied in its entirety, the motion is granted insofar as declaratory relief was sought, and judgment is granted in favor of defendant as follows:

It is ADJUDGED and DECLARED that plaintiffs' losses are encompassed by the $500,000 per occurrence limit in the insurance policy at issue.

Opinion by Smith, J.: Plaintiffs commenced this action seeking a declaration of the rights of the parties to an insurance policy. In November 1991, defendant issued the policy to Tony Clyde Wilson, the owner of an apartment building in the City of Rochester. The policy, which had a per-occurrence limit of $500,000, was for one year, and it was renewed for two additional one-year periods. In 1993, two children were exposed to lead paint while living in an apartment in that building, and one suffered injuries as a result of that exposure. According to Wilson's deposition testimony, he attempted to remediate the lead paint condition after learning that the children had been exposed to lead, although the record is unclear with respect to the exact actions that he undertook. That family moved out of the apartment shortly thereafter, and the mother of those children later commenced an action against, inter alia, Wilson, seeking damages for injuries that the child sustained as a result of her exposure to lead (first tort action). In 1994, two children of a subsequent tenant were also exposed to lead in the same apartment. Plaintiffs herein commenced a separate action to recover damages for the personal injuries sustained by those two children (second tort action). While the second tort action was pending, the first tort action settled for $350,000, which defendant paid pursuant to its policy. Defendant took the position that the noncumulation clause in the policy limited its liability for all lead exposures in the apartment to a single policy limit of $500,000, and offered plaintiffs the remaining $150,000 of coverage to settle the second action. The parties entered into a stipulation whereby Wilson was released from liability. They further agreed that plaintiffs would recover $150,000 if the noncumulation clause limited recovery to a single policy limit as claimed by defendant, but plaintiffs would recover $500,000 if the policy also required defendant to pay the full policy limit for the injuries sustained by the second set of children. Plaintiffs then commenced this declaratory judgment action to resolve that issue. Defendant appeals from a judgment denying its motion for summary judgment dismissing the complaint and granting plaintiffs' cross motion insofar as it sought a declaration that the amount of insurance coverage to which plaintiffs are entitled is the full $500,000 policy limit.

At issue on this appeal is whether the policy requires defendant to pay a second full policy limit under these circumstances or whether plaintiffs' losses are encompassed by the $500,000 per occurrence limit in the insurance policy. We agree with defendant that, pursuant to the unequivocal language of the policy, defendant is responsible only up to its limit for a single policy, and we thus conclude that Supreme Court should have granted a declaration in favor of defendant.

Our analysis begins with the well-settled proposition that "unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court" (White v Continental Cas. Co., 9 NY3d 264, 267; see State of New York v Home Indem. Co., 66 NY2d 669, 671). The policy provision at issue states: "Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss" (emphasis omitted). The Court of Appeals interpreted this insurer's nearly identical policy provision in Hiraldo v Allstate Ins. Co. (5 NY3d 508, 512). There, a child was injured by exposure to lead in an apartment covered by a policy that the property owners renewed for two additional policy periods while the injured party stayed in the apartment and was further exposed to the lead. The Court of Appeals, relying in part upon three federal District Court decisions applying New York law to this policy language (see Bahar v Allstate Ins. Co., 2004 WL ...


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