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U.S. Underwriters Ins. Co. v. 101-19 37Th Avenue LLC

United States District Court, E.D. New York

March 27, 2014

U.S. UNDERWRITERS INS. CO., Plaintiff,
v.
101-19 37th AVENUE LLC, UNITED FOUNDERS LTD., SAAL MANAGEMENT CORP., FEREYDOUN POURATIAN, JOSE MONTESDEOCA and SONIA MONTESDEOCA, Defendants.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

U.S. Underwriters Insurance Company ("U.S. Underwriters") filed the instant action against defendants 101-19 37th Avenue LLC ("101-19 LLC"), United Founders Limited ("United"), Saal Management Corporation ("Saal"), Fereydoun Pouratian ("Pouratian"), Jose Montesdeoca, and Sonia Montesdeoca (collectively, "Defendants"), seeking a declaratory judgment that it has no obligation to defend or indemnify its insured, 101-19 LLC, with respect to the claims asserted against 101-19 LLC in the underlying action, Victor & Sonia Montesdeoca v. 101-19 37th Avenue LLC, United Founders Ltd., Saal Mangement Corp., Fereydoun Pouratian, Alpha Builder Inc. & Lee Engineering P.C., filed in New York State Supreme Court, Queens County, Index No. 27647-11 ("Montesdeoca Action"). ( See Complaint, Dkt. Entry No. 1.) U.S. Underwriters moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that an exclusion in the policy between U.S. Underwriters and 101-19 LLC ("Policy") bars coverage for 101-19 LLC in the Montesdeoca Action. ( See Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment ("Pl. Mem."), Dkt. Entry No. 21.) Defendants 101-19 LLC and Pouratian oppose U.S. Underwriters' motion. ( See 101-19 LLC & Pouratian's Memorandum of Law in Opposition ("Defs.' Opp'n"), Dkt. Entry No. 24.) For the reasons set forth below, U.S. Underwriters' motion is granted.

BACKGROUND[1]

I. Parties

U.S. Underwriters is a Pennsylvania corporation with its principal place of business located in Wayne, Pennsylvania. (Plaintiff's 56.1 Statement of Facts ("Pl.'s 56.1"), Dkt. Entry No. 20 ¶2.) 101-19 LLC is a New York corporation with its principal place of business located in Port Washington, New York. ( Id. ¶ 3.) 101-19 LLC is the owner of the premises located at 101-15 37th Avenue, Corona, New York 11368 (the "Premises"). ( Id. ¶ 4.) At all times relevant to this action, Pouratian was a 25% shareholder in 101-19 LLC. ( Id. ¶ 6; 101-19 LLC & Pouratian's 56.1 Counterstatement of Fact ("Defs.' 56.1), Dkt. Entry No. 23 ¶6.) Pouratian owns United, which is a New York corporation with its principal place of business located in Great Neck, New York. (Pl.'s 56.1 ¶¶ 7-8.) Pouratian owns a 50% interest in Saal, which is a New York corporation with its principal place of business also located in Great Neck. ( Id. ¶¶ 10-11.)

II. Terms in the Policy

U.S. Underwriters issued the Policy to 101-19 LLC, for the period October 24, 2011 through January 24, 2012, which provided commercial general liability coverage. ( Id. ¶ 20.) Notably, the Policy contained certain exclusions. It is the "Bodily Injury Exclusion - All Employees, Volunteer Workers, Temporary Workers, Casual Laborers, Contractors, and Subcontractors" ("Bodily Injury Exclusion") that is at issue in this action. ( Id. ¶ 21.) The Bodily Injury Exclusion states:

L-500 (1/06)
This Endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
BODILY INJURY EXCLUSION - ALL EMPLOYEES, VOLUNTEER WORKERS, TEMPORARY WORKERS, CASUAL LABORERS, CONTRACTORS, AND SUB-CONTRACTORS
I. Paragraph 2. Exclusions subparagraph e. of Section I - Coverages, Coverage A Bodily Injury and Property Damage Liability is deleted in its entirety and replaced with the following:
1. "Bodily Injury" to any "employee", "volunteer worker", temporary worker" or "casual laborer" arising out of or in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of any insured's business;
2. "Bodily Injury" to any contractor, subcontractor or any "employee", "volunteer worker", "temporary worker" or "casual laborer" of any contractor or subcontractor arising out of or in the course of the rendering or performing services of any kind or nature whatsoever by such contractor, subcontractor or "employee", "volunteer worker", "temporary worker" or "casual laborer" ...

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