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Liberty Mutual Insurance Co. v. Zurich American Insurance Co.

United States District Court, S.D. New York

March 28, 2014



ANDREW L. CARTER, Jr., District Judge.

After the settlement of a personal injury action, two insurance companies dispute who should foot the bill. Plaintiff Liberty Mutual Insurance Company ("Liberty Mutual") seeks declaratory judgment that Defendant Zurich American Insurance Company ("Zurich American") is primarily responsible for insurance coverage in this matter as well as summary judgment for reimbursement of the $1 million it contributed to a settlement, arguing that the loss is covered under separate policies issued by Zurich American. Zurich American, separately seeks summary judgment that neither policy requires coverage to the additional insured. For the reasons set forth below, Liberty Mutual's motion (Dkt. No. 24) is granted and Zurich American's motion (Dkt. No. 30) is denied.


I. Underlying Action and Settlement

The present action arises out of an accident that occurred on March 11, 2008, that resulted in a lawsuit commenced by Louis DiMauro ("DiMauro") and Renee DiMauro entitled Louis DiMauro v. DOLP 205 Properties 11, Durst Organization. Inc., and Royal Realty Corp., Index No. 111748-08, in the Supreme Court of the State of New York, County of New York (the "Underlying Action"). The Underlying Action was filed against DOLP 205 Properties 11 ("DOLP"), the Durst Organization, Inc. ("Durst"), and Royal Realty Corp. ("Royal Realty") (collectively, the "Durst Entities"). In the Underlying Action, DiMauro alleges that he was injured on March 11, 2008 while working at premises located at 205 East 42nd Street, New York, NY, which were owned and/or managed by one or more of the Durst Entities. At the time of DiMauro's injury, he was employed as an elevator mechanic by Schindler Elevator Corporation ("Schindler") and was at the Premises to fix a compensation switch. (Def. Rule 56.1 Stmt. ¶ 4).

DiMauro was injured during the opened the door to the elevator pit, turned to face a steel ladder affixed to the wall in order to descend to the pit's floor and placed his hands and feet on the ladder. As he was lowering himself into the pit, the right-hand side of the ladder pulled out and away from the wall, causing all of DiMauro's weight to shift to his left hand, allegedly causing injuries to DiMauro's left hand, arm and shoulder. (Def. Rule 56.1 Stmt. ¶ 6). In the Underlying Action, DiMauro alleged claims for negligence, three New York labor law claims (under sections 200, NYLL 240, 241(6)) and on behalf of DiMauro's wife, loss of consortium.

The Durst Entities were named insured and additional named insureds under a commercial general liability policy with Liberty Mutual, with a policy period from October 26, 2007 to October 26, 2008 (the "Liberty Mutual Policy"). (Pl's Rule 56.1 Stmt. ¶¶ 58-59). The Liberty Mutual Policy is an excess insurance policy that provides insurance in "excess over... [a]ny other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement." (Id. ¶ 60). Liberty Mutual contributed $1 million to the settlement of the Underlying Action pursuant to the Liberty Mutual Policy. Liberty Mutual now seeks reimbursement in light of primary insurance coverage under separate Zurich American insurance policies, one issued to the Durst Entities and one issued to Schindler.

II. The Zurich American Policies

A. Owners and Contractors Protective Liability (Zurich American - Durst Entities)

Royal Realty, one of the Durst Entities, maintained a policy with Zurich American. Specifically, Zurich American issued Owners and Contractors Protective Liability coverage for the policy period January 1, 2008 to January 1, 2009 ("Zurich American OCPL Policy"). (See DeMarco Aff. Ex. N, Zurich American OCPL Policy). The designated contractor on policy is Schindler. (Id. at Bates No. LM601; Def. Rule 56.1 Stmt. ¶ 29).

As relevant here, the OCPL Policy provides for "bodily injury" "only if

(1) The "bodily injury"... 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; and

(2) The "bodily injury"... occurs during the policy period.

(See Shyer Aff. Ex. "16"; DeMarco Aff. Ex. N; Pl's Rule ...

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