HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL),
OVIATT GILMAN LLP, ROCHESTER (ROBERT D. HOOKS OF COUNSEL),
FOR DEFENDANT-RESPONDENT J.M. PEREIRA & SONS, INC.
ROTHSCHILD LLP, NEW YORK CITY (MATTHEW J. SCHENKER OF
COUNSEL), FOR DEFENDANT-RESPONDENT RPC, INC., ALSO KNOWN AS
RUBBER POLYMER CORPORATION.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, AND SCUDDER, JJ.
from an order of the Supreme Court, Monroe County (Renee
Forgensi Minarik, A.J.), entered November 12, 2015. The
order, insofar as appealed from, denied plaintiff's
motion for summary judgment.
hereby ORDERED that the order so appealed from is affirmed
Plaintiff, Erie Insurance Exchange, commenced this action
seeking a declaration that it is not obligated to defend or
indemnify defendant J.M. Pereira & Sons, Inc. (JMP) in an
underlying personal injury action. We conclude that Supreme
Court properly denied plaintiff's motion for summary
2006, several employees of JMP, a Pennsylvania corporation,
were either injured or killed while working for JMP in New
York State. At the time of the accident, the employees were
allegedly working with waterproofing products produced by
defendant RPC, Inc., also known as Rubber Polymer Corporation
(RPC). The injured employee and the estates of the two
employees killed in the accident commenced actions against
various parties, including RPC, which in turn commenced
third-party actions against JMP. At the time of the accident,
JMP was insured by several insurance policies, two of which
had been issued by plaintiff. One policy, the "Ultraflex
Policy, " provided insurance for property damage, but it
has been exhausted and is not at issue on this appeal. The
second policy, known as the "Business Catastrophe
Liability Policy" (BCL policy), provided commercial
liability umbrella coverage.
tendered its defense and indemnification to JMP, and both JMP
and RPC tendered their defense and indemnification to
plaintiff. Plaintiff denied the tender, contending that there
was no contract or written agreement between RPC and JMP that
would require defense and indemnification for the underlying
claims and that RPC was not an additional insured under the
BCL policy. With respect to JMP, plaintiff reserved its
rights to disclaim coverage based on a policy exclusion that
excluded coverage for bodily injury to JMP's employees if
such injury arose out of their employment or during the
course of performing their duties related to JMP's
also insured by the State Workers' Insurance Fund of
Pennsylvania (SWIF), which had issued a single policy
containing "WORKERS COMPENSATION INSURANCE" and
"EMPLOYERS LIABILITY INSURANCE." The employers
liability insurance "applied to work in the State of
Pennsylvania, " or employment that was "necessary
or incidental to [JMP's] work" in Pennsylvania.
Based on the applicability of several policy exclusions,
including the geographic limitations of the policy, the SWIF
thereafter commenced an action in Pennsylvania against JMP,
RPC, the injured employee, and the estates of the two killed
employees, seeking a declaration that it had no duty to
defend and indemnify JMP in the underlying actions. That
Pennsylvania action was dismissed "without prejudice to
refile with joinder of all indispensable parties."
Following that dismissal, plaintiff commenced the instant
action in New York, seeking a declaration that it has no
obligation to defend JMP in the underlying actions and no
obligation to indemnify JMP against any obligation it may
incur in those underlying actions.
any depositions or any exchange of discovery between JMP and
RPC, plaintiff moved for summary judgment, contending that
Pennsylvania law governed interpretation of the BCL policy
and that Exclusion G of that policy precluded coverage. All
of the defendants opposed the motion.
to plaintiff's contention, we need not apply Pennsylvania
law in order to interpret the provisions of the various
insurance policies. "The first step in any case
presenting a potential choice of law issue is to determine
whether there is an actual conflict between the laws of the
jurisdictions involved" (Matter of Allstate Ins. Co.
[Stolarz-New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219,
223). "There is no need to engage in conflicts of laws
analysis absent a conflict between the laws of New York and
Pennsylvania with respect to the applicability of basic
tenets of contract interpretation" (National
Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh,
Pa., 33 A.D.3d 570, 570). Here, there is no such
conflict (compare Matter of Viking Pump, Inc., 27
N.Y.3d 244, 257; Pioneer Tower Owners Assn. v State Farm
Fire & Cas. Co., 12 N.Y.3d 302, 307; Belt
Painting Corp. v TIG Ins. Co., 100 N.Y.2d 377, 383;
with Babcock & Wilcox Co. v American Nuclear
Insurers, 131 A.3d 445, 456; Mutual Benefit Ins. Co.
v Politsopoulos, 631 Pa 628, 640, 115 A.3d 844, 852 n 6;
Penn-America Ins. Co. v Peccadillos, Inc., 27 A.3d
259, 264-265, appeal denied 613 Pa 669, 34 A.3d
G of the BCL policy provides that coverage is excluded for
bodily injuries to JMP employees "arising out of and in
the course of... [e]mployment by [JMP]; or... [p]erforming
duties related to the conduct of [JMP's] business."
There are three exceptions to Exclusion G, two of which are
relevant to this appeal. The first provides that Exclusion G
"does not apply to liability assumed by the insured
under an insured contract.' " Insofar as relevant to
this appeal, the BCL policy defines an "insured
contract" as "[t]hat part of any other contract or
agreement pertaining to [JMP's] business... under which
[JMP] assume[s] the tort liability of another part [
sic ] to pay for bodily injury' or ...