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Atlantic Casualty Insurance Co. v. DTM Carpentry Corp.

United States District Court, E.D. New York

January 8, 2020

ATLANTIC CASUALTY INSURANCE COMPANY, Plaintiff,
v.
DTM CARPENTRY CORP., LINDA MOORE, WILMER E. VILLALBA, JOHN “JACK” R. BRADY, JACK R. BRADY d/b/a JACK BRADY-CUSTOM BUILDER, DM CARPENTRY CORP., DARREN MOORE, and RAYMOND J. RIEDER, Defendants.

          MEMORANDUM AND ORDER

          SANDRA J. FEUERSTEIN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff Atlantic Casualty Insurance Company (“Plaintiff”, “Atlantic Casualty” or “ACIC”) commenced this declaratory judgment against Defendants DTM Carpentry Corp. (“DTM”), Linda Moore (“Linda”), Wilmer E. Villalba (“Villalba”), John (“Jack”) R. Brady (“Brady”), Jack R. Brady d/b/a Jack Brady-Custom Builder (“Builder”; together with Brady, the “Brady Defendants”), DM Carpentry Corp. (“DM”), Darren Moore (“Darren”), and Raymond J. Rieder (“Rieder”), seeking declaratory judgment that it does not owe coverage, or a duty to defend or indemnify, DTM or any other person or entity under the Atlantic Casualty Policy No. L068018773 or any other policy issued on behalf of Atlantic Casualty, for any claim arising out of Villalba's February 26, 2016 accident. (See generally Amended Complaint[1] (ECF No. 4).) Presently before the Court is Plaintiff's motion seeking summary judgment on its Amended Complaint (hereafter, the “Summary Judgment Motion”) (see ECF No. 43; see also Mem. in Supp. (“Support Memo”) (ECF No. 43-15)), which the Brady Defendants and Villalba oppose (see ECF No. 44-4 (hereafter, “Brady Opposition” or “B-Opp'n”); ECF No. 45-4 (hereafter, “Villalba Opposition” or “V-Opp'n”)). For the following reasons, Plaintiff' Summary Judgment Motion is GRANTED.

         II. Background

         A. Factual Background[2]

         1. The Insurance Policy

         DTM was the “Named Insured” under a commercial general liability insurance policy issued on behalf of ACIC, Policy No. L068018773 (hereafter, the “Policy”), which was effective from October 30, 2015 to October 20, 2016. (Rule 56.1 Stmt., ¶1.) Among other things, the Policy contained endorsement AGL-055A (dated “3/13/), entitled: “Exclusion of Injury to Employees, Contractors and Employees of Contractors” (hereafter, the “Exclusion”), which stated:

EXCLUSION OF INJURY TO EMPLOYEES, CONTRACTORS AND EMPLOYEES OF CONTRACTORS
Exclusion e. Employer's Liability of SECTION I - COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY is replaced by the following:

         This insurance does not apply to:

(i) “bodily injury” to any “employee” of any insured arising out of or in the course of:
(a) Employment by any insured; or
(b) Performing duties related to the conduct of any insured's business;
(ii) “bodily injury” to any “contractor” for which any insured may become liable in any capacity; or
(iii) “bodily injury” sustained by any spouse, child, parent, brother or sister of any “employee” of any insured, or of a “contractor”, as a consequence of any injury to any person as set forth in paragraphs (i) and (ii) of this endorsement.

         This exclusion applies to all claims and “suits” by any person or organization for damages because of “bodily injury” to which this exclusion applies including damages for care and loss of services.

         This exclusion applies to any obligation of any insured to indemnify or contribute with another because of damages arising out of “bodily injury” to which this exclusion applies, including any obligation assumed by an insured under any contract.

         With respect to this endorsement only, the definition of “Employee” in the SECTION V - DEFINITIONS is replaced by the following:

“Employee” shall include, but is not limited to, any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.
As used in this endorsement, “contractor” shall include, but is not limited to, any independent contractor or subcontractor of any insured, any general contractor, any developer, any independent contractor or subcontractor of any general contractor, any independent contractor or subcontractor of any developer, any independent contractor or subcontractor of any property owner, and any and all persons working for and or providing services and or materials of any kind for these persons or entities mentioned herein.
ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED.

(Id. at ¶3 (quoting Exclusion at Bates No. ACIC000051, part of Policy, attached as Ex. 1 (ECF No. 43-12) to Coric Aff. (ECF No. ...


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