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HDI-Gerling America Insurance Co. v. Liberty Mutual Insurance Co.

United States District Court, Second Circuit

July 16, 2013

HDI-GERLING AMERICA INSURANCE COMPANY, as successor in interest to Gerling America Insurance Company, Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Defendant. LIBERTY MUTUAL INSURANCE COMPANY, Third-Party Plaintiff,
v.
DYNAMIC PAINTING CORPORATION, ROMANO ENTERPRISES OF NEW YORK INC., and DYNAMIC PAINTING CORPORATION/ROMANO ENTERPRISES OF NEW YORK INC., A JOINT VENTURE, Third-Party Defendants.

REPORT AND RECOMMENDATION

JEREMIAH J. McCARTHY, Magistrate Judge.

Before me is the motion by defendant/third-party plaintiff Liberty Mutual Insurance Company ("Liberty Mutual") [74] for summary judgment against plaintiff HDI-Gerling America Insurance Company ("HDI-Gerling"). For the following reasons, I recommend that the motion be granted.

BACKGROUND

This action arises from a September 27, 1999 accident in which R.L Floyd, an employee of Dynamic Painting Corporation and/or Dynamic/Romano Joint Venture, allegedly sustained personal injuries while painting the Grand Island Bridge pursuant to a contract with the New York State Thruway Authority ("NYSTA").

The OCP Policy

On August 18, 1997 the NYSTA entered into an "Engineering Agreement for Construction Inspection" with KTA-Tator Engineering, P.C. ("KTA") in connection with the Grand Island Bridge Project (the "Project") [78-5]. Pursuant to this agreement, KTA secured an Owners' and Contractors' Protective Liability Policy, No., TF1-181-015293-357 ("OCP Policy") identifying the NYSTA as the Named Insured. Liberty Mutual's Local Civil Rule 56.1 Statement [74-1], ¶7.

The relevant portion of the OCP Policy states:

"b. This insurance applies to bodily injury' and property damage' only if:
(1) The bodily injury' or property damage' is caused by an occurrence' and arises out of:
(a) Operations performed for you by the contractor' at the location specified in the Declarations; or
(b) Your acts or omissions in connection with the general supervision of such operations". OCP Policy [74-5], Owners and Contractors Protective Liability Coverage Form - Coverage for Operations of Designated Contractor, Section I, ¶1(b).

KTA is defined by the OCP Policy as the "contractor". Id., Section V, ¶3. The OCP Policy also contains a notice provision, which states:

"4. Duties in The Event of Occurrence, Claim or Suit
a. You must see to it that we are notified as soon as practicable of an occurrence' which may result in a claim....
b. If a claim is made or suit' is brought against any ...

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