United States District Court, E.D. New York
ALAN C. EAGLE, ESQ., FRANK A. VALVERDE, ESQ., Rivkin Radler LLP, Uniondale, NY, for the Plaintiff.
ALAN L. FRANK, ESQ., Alan L. Frank Law Associates, P.C., Jenkintown, PA, for the Defendant.
MEMORANDUM AND ORDER
FREDERIC BLOCK, Senior District Judge.
Plaintiff Northfield Insurance Company ("Northfield") seeks a declaratory judgment that it has no duty to defend or indemnify defendant Omni Build, Inc. ("Omni") in an underlying New York State Supreme Court action (the "state court action") that was settled on September 8, 2014. Northfield moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the Court finds that Northfield is not obligated to defend or indemnify Omni in the state court action because of an exclusion contained in the general liability insurance policy it issued to Omni. Accordingly, Northfield's motion is granted.
The following undisputed facts are taken from the parties' Rule 56.1 statements and the record evidence. Omni had a Commercial General Liability Insurance Policy (the "Policy") with Northfield for a period covering October 15, 2008 to October 15, 2009. The Policy provided general coverage for lawsuits against Omni for "bodily injur[ies]" caused by an "occurrence" - defined as an "accident" - taking place during the policy period. McCormick Aff., Ex. 1. However, the Policy contained the following Contracted Persons Exclusion (the "Exclusion"):
This insurance does not apply to "bodily injury, "... sustained by any person who is:
(1) contracted with you or with any insured for services, or
(2) employed by, leased to or contracted with any entity that is:
(a) contracted with you or with any insured for services, or
(b) contracted with others on your behalf for services.
During the policy period, Omni served as the general contractor for a construction project in Brooklyn, New York (the "Project"). Omni hired Zom Corp. ("Zom") as a masonry subcontractor on the Project. In that capacity, Zom was responsible for constructing the building's walls with cinder blocks. To fulfill its duties on the Project, Zom contracted with Stone Age Equipment ("Stone Age") - a rental company - for a boom truck that was used to hoist cinder blocks to floors of the building under construction.
On April 27, 2009, Jerzy Snop ("Snop"), a Stone Age employee, was allegedly injured while hoisting a pallet of cinder blocks on the Project (the "Accident"). In March 2010, Snop commenced the state court action against Omni and the building's owners. Northfield received written notice of the state court action from Omni on April 22, 2010. In the notice, Omni stated that it had "absolutely NO knowledge of what allegedly happened" and did "not recall any names or activities." McCormick Aff., Ex. 2 (emphasis in original). The next day, April 23, 2010, Northfield contacted Snop's ...