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Century Surety Co. v. Marzec

United States District Court, Second Circuit

July 30, 2013

CENTURY SURETY COMPANY, Plaintiff,
v.
RICHARD MARZEC, et al., Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiff Century Surety Company ("Century") brings this action, pursuant to 28 U.S.C § 1332(a)(1), against Defendants Richard Marzec ("Marzec"), Garsch Garage Corporation ("Garsch"), Ionel Susanu ("Susanu"), and Richard Roe ("Roe"). Century seeks a declaration that it has no duty to defend or indemnify Garsch or Susanu for any claims arising out of the underlying incident, including an underlying action against them in state court. Century also seeks a judgment against Garsch and Susanu in the amount of the defense costs Century has since incurred defending the Marzec action in state court.

Before the Court is Garsch's motion for judgment on the pleadings, as well as Century's cross-motion for summary judgment. For the reasons that follow, Garsch's motion is granted, Century's motion is denied, and the case is dismissed.

I. Background

Defendant Garsch operates a parking garage in which Defendant Susanu works, parking, retrieving, and moving cars as necessary. (Memorandum of Law in Support of Motion for Judgment on the Pleadings, Dkt. No. 13 ("Def.'s Mem."), at 2.) In March 2011, Defendant Marzec filed a personal injury lawsuit in the Supreme Court of New York County against Garsch and John Doe-later identified as Susanu-alleging that Marzec suffered injuries in January 2010, when he was struck by a vehicle owned by Defendant Roe, and operated by Susanu, while inside the Garsch garage. (Memorandum of Law in Support of Cross-Motion, Dkt. No. 21 ("Pl.'s Mem."), at 2.)

Prior to this incident, in September 2009, Garsch applied for insurance coverage for its parking garage, which was to be effective from October 10, 2009 through October 10, 2010. (Affidavit of Michael F. Perley, Dkt. No. 20 ("Perley Aff."), Ex. E-3). Century asserts that as a result of the Commercial Operations Application that was completed by Garsch, in which Garsch detailed its operations and agreed to be bound by the terms of the policy, it issued a Commercial Lines Policy ("the Policy") to Garsch. ( Id. , Ex. G.) The Policy contained several endorsements, including Endorsement CA00 05 10 01, constituting a Garage Coverage Form extending to "bodily injury and property damage" caused by "covered" automobiles, meaning that "[Century] will pay all sums an insured legally must pay as damages because of bodily injury' or property damage' to which this insurance applies." ( Id. at CA 00 05 10 01, II.A.1.a.) Both Garsch and Century agree that "[b]y operation of coverage form declaration CHE 1900 1203 the Porsche Cayenne SUV owned by Roe is a covered auto[, ]'" as defined by the Policy. (Complaint, Dkt. No. 1, ("Compl."), at ¶ 22; Answer, Dkt. No. 7 ("Ans."), at ¶ 22.)

The Policy also contained various exclusions, including the so-called "Named Driver Exclusion, " reflected in Endorsement CAG 1906 1203. (Declaration of Lloyd M. Eisenberg, Dkt. No. 12 ("Eisenberg Decl."), Ex. C.) This Named Driver Exclusion ("the Exclusion"), the construction of which is focus of the instant suit, reads as follows:

Schedule Driver Name
ALL EMPLOYEES EXCEPT FOR: JACK SCHWARTZ FLORIN SAUV HORIA CRISTAN
A. The following is added to B. Exclusions under SECTION. II - LIABILITY COVERAGE, and to Exclusions under UNINSURED MOTORISTS COVERAGE, UNDERINSURED MOTORISTS COVERAGE, PERSONAL INJURY PROTECTION or MEDICAL PAYMENTS COVERAGE, if coverage is provided:
This insurance does not apply to "bodily injury", "property damage" or medical payments while a covered "auto" is driven by any individual shown in the schedule above.

( Id. ) Garsch disputes that this Exclusion was intended to be a part of its policy, alleging that Century "included no such endorsement in any policy issued to Garsch before or after the policy here at issue." (Ans. at ¶ 42.)

II. Legal Standard

Garsch has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), requesting that the Court dismiss the Complaint and enter judgment on Garsch's counterclaim against Century. In turn, Century has cross-moved for summary judgment, pursuant to Rule 56(a), seeking a declaration that the underlying incident is not covered by the explicit terms of the Policy and its Exclusion, meaning that Century has no ...


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