CITIZENS INSURANCE COMPANY OF AMERICA, Plaintiff-Counter-Defendant-Appellant,
RISEN FOODS, LLC, PETR A. TKACH, JASON J. TANNER, CRISTINA TANNER, Defendants-Counter-Claimants-Appellees.
Argued: October 17, 2017
from the Nov. 23, 2016, judgment of the United States
District Court for the Northern District of New York (Brenda
K. Sannes, District Judge), declaring that Citizens Insurance
Company of America is obligated to defend and, if necessary,
indemnify Risen Foods, LLC, and Petr A. Tkach under a
businessowners policy and an umbrella policy in an underlying
suit brought by Jason J. Tanner and Cristina Tanner for
damages arising out of a motor vehicle accident.
Michael P. Kandler, Goldberg Segalla LLP, White Plains, NY,
for Plaintiff-Counter- Defendant-Appellant.
Laurence D. Behr, Barth Sullivan Behr, Buffalo, NY, for
Before: NEWMAN and CABRANES, Circuit Judges, and CHATIGNY,
NEWMAN, Circuit Judge.
insurance coverage dispute, Citizens Insurance Company of
America ("Citizens") appeals from the Nov. 23,
2016, judgment of the United States District Court for the
Northern District of New York (Brenda K. Sannes, District
Judge). The judgment declared that Citizens is obligated to
defend and, if necessary, indemnify Risen Foods, LLC
("Risen") and Petr A. Tkach under a businessowners
policy and an umbrella policy, both issued by Citizens, in an
underlying suit brought by Jason J. Tanner and Cristina
Tanner for damages arising out of a motor vehicle accident.
we conclude that Risen's vehicle was not covered by
either policy, we reverse.
April 29, 2013, a van owned by Risen and driven by Tkach, a
Risen employee, collided with a truck driven by Tanner.
Tanner suffered serious injuries. Later in 2013, Tanner and
his wife, Cristina, sued Risen and Tkach for Tanner's
injuries and related loss of services ("underlying
Risen vehicle was insured under a commercial auto policy
issued by State Farm Insurance Company ("State
Farm") with a liability limit of $1,000,000 per
occurrence. State Farm has provided defense and indemnity
coverage to Risen and Tkach with respect to the underlying
suit and offered close to the policy limit to settle it.
issued to Risen a businessowners policy and an umbrella
policy. Both policies bear the same policy number,
OBF-9828714-00, and the SCHEDULE OF UNDERLYING
POLICIES of the umbrella policy states,
"This schedule is part of
Policy Number: OBF-9828714-00." The
businessowners policy has a limit of $1,000,000 per
occurrence, and the umbrella policy has a limit of $2,000,000
businessowners policy in section II(A)(1), titled
"Business Liability," provides:
"We will pay those sums that the insured becomes legally
obligated to pay as damages because of 'bodily
injury', 'property damage' or 'personal and
advertising injury' to which this insurance
The businessowners policy in section II(B), titled
"This insurance does not apply to
. . .
"g. Aircraft, Auto or Watercraft
"'Bodily injury' or 'property damage'
arising out of the ownership . . . of any . . .
'auto' . . . owned . . . by . . . any insured."
businessowners policy contains an endorsement captioned
"HIRED AUTO AND NON-OWNED AUTO LIABILITY – NEW
YORK" ("the endorsement"), which states,
"This endorsement modifies insurance provided under the
following: BUSINESSOWNERS POLICY." Under the heading