United States District Court, N.D. New York
FOR THE PLAINTIFF: FRANK M. MISITI, ESQ., MARC P. GORFINKEL, ESQ., WILLIAM M. SAVINO, ESQ., OF COUNSEL, Rivkin, Radler Law Firm , Uniondale, NY.
FOR THE DEFENDANTS: JAMES M. REILLY, ESQ., OF COUNSEL, Herzog Law Firm, Albany, NY.
MEMORANDUM-DECISION AND ORDER
Gary L. Sharpe, Chief Judge.
Plaintiff Central Mutual Insurance Company commenced this action against defendants William P. Willig, in his capacity as the executor of the Estate of William J. Morgan (the " Morgan Estate" ), Norman R. Levy, and Doreen Levy, seeking a judgment declaring, among other things, that the insurance contracts entered into by Central and the Levys do not obligate Central to defend or indemnify the Morgan Estate for any amounts in connection with an underlying state court action. (Compl., Dkt. No. 1.) Pending is Central's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 17.) For the reasons that follow, Central's motion is granted.
This action concerns the scope of two insurance policies, an easement on the shores of Lake George, and a long-standing feud between Levy and Morgan that lives on, even after Morgan's death.
1. The Insurance Policies
Central issued two insurance policies--a Homeowners Policy, number FMH 4245859, (Dkt. No. 1, Attach. 1), and a Personal Umbrella Policy, number PXS 4245870, (Dkt. No. 1, Attach. 2), (collectively, " the Policies" ). Both of the Policies identify the Levys as the named insureds, and Morgan, now deceased, is included as an additional insured. (Dkt. No. 1, Attachs. 1, 2.) Among other things, the Policies promise to defend and indemnify the insureds " [i]f a . . . suit is brought against an 'insured' for damages because of 'bodily injury' or 'property damage' caused by an 'occurrence.'" (Dkt. No. 1, Attach. 1 at 20, 34, 36; Dkt. No. 1, Attach. 2 at 7.) Notably, an " 'occurrence'" is defined as " an accident." (Dkt. No. 1, Attach. 1 at 8; Dkt. No. 1, Attach. 2 at 6.) Further, as relevant to this motion, one exclusion under the Policies is of note: the Policies exclude coverage for " '[b]odily injury' or 'property damage' which is expected or intended by an 'insured,'" (" the Exclusion" ). (Compl. ¶ ¶ 23, 24; Dkt. No. 1, Attach. 1 at 22, 34, 36; Dkt. No. 1, Attach. 2 at 7.)
2. The Underlying Action
On March 23, 2013, Levy filed a complaint against Willig, in his capacity as the executor of Morgan's estate, and Tomas Decea, Morgan's tenant (" the Underlying Complaint" or " the Underlying Action" ). (Dkt. No. 1, Attach. 3.) In general, the Underlying Complaint tells the story of the unrelenting battle between Morgan and Levy, over an easement, held by Levy, on the northerly and southerly sides of Morgan's property, which sits on Lake George; the easement grants Levy access to the shores, and the right to construct and use a temporary dock. ( See generally id.) Specifically, the Underlying Complaint alleges that, from 2002 through 2008, Morgan himself undertook several actions to impede Levy's use of his easement, including: (1) " intentionally and unlawfully remov[ing] and destroy[ing]" Levy's dock and " block[ing Levy]'s access to [his] dock area," ( id. ¶ 19); (2) refusing to comply with New York state court orders and stipulations that required him to reconstruct the dock, ( id. ¶ ¶ 20-28); (3) altering the grade, pitch, and size of the northerly easement so that the easement was rendered unusable--actions for which he was ultimately held in contempt, ( id. ¶ ¶ 25-26); and (4) blocking the easement and dock with boards containing nails protruding upward and his vehicle, ( id. ¶ 31).
Later, in 2010, Morgan rented his property to Decea, at a discounted price, and " with the express understanding, agreement[,] and purpose of having . . . Decea . . . engage in a course of conduct to physically remove [Levy] from the Morgan property and to interrupt and interfere with [Levy]'s deeded and court ordered rights." ( Id. ¶ ¶ 32-33, 115.) Specifically, on July 3, 2010, after discovering that Decea physically blocked the right-of-way, Levy parked his truck on Morgan's lawn, and walked down to the dock. ( Id. ¶ 48.) When Levy returned to his vehicle, he was arrested and charged with reckless endangerment
and criminal mischief; the criminal complaint was based entirely on a supporting deposition from Decea. ( Id. ¶ ¶ 50, 51.) Consequently, an order of protection was entered against Levy, which required him to stay away from Decea, his home, and his family, but still permitted Levy to use the easement. ( Id. ¶ ¶ 54-55.) Despite his right to continue to use the easement, Levy was again arrested on ...