Corporation Not a "Person" For Purposes of Wrongful Eviction PI Coverage

CGL – PERSONAL & ADVERTISING INJURY COVERAGE – WRONGFUL EVICTION OF "PERSON"
47 Mamaroneck Ave. Corp. v. Hartford Fire Ins. Co.
(2nd Dept. decided 4/22/2008)

In 47 Mamaroneck Ave. Corp. v. Hartford Fire Ins. Co., 2008 NY Slip Op 03585 (2nd Dept. decided 4/22/2008), the 2nd Department affirmed the lower court's award of summary judgment to the insurer, finding that a corporation was not a "person" for purposes of the CGL policy's personal injury coverage for "wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor". The insured plaintiff had sought the costs of defending a suit brought by a former commercial tenant, Rent-a-Center, Inc., which had alleged in the underlying action that the insured and its president had "embarked on a plan of harassment and coercion with the intention of causing RAC to terminate its leasehold," which included "[t]respassing upon [RAC's] premises and interfering with RAC's business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector...to solicit or elicit non-existent fire code violations." Noting that although the term "person" was not defined in the CGL policy, the definition of "personal and advertising injury" in the policy distinguished between "person" and "organization" and that defamation of a "person or organization" was included in the definition, while the wrongful eviction and wrongful entry language was limited to "the right of private occupancy of a room, dwelling or premises that a person occupies[.]" Since Rent-a-Center was not a natural person, any invasion of its leasehold was not covered by the definition of "personal and advertising injury" under the policy.

The court also rejected the insured's argument that Hartford failed to disclaim in a timely fashion, correctly noting that New York Insurance Law § 3420 only applies to death or bodily injury claims. Moreover, in this case, no disclaimer was necessary because the underlying claim against the insured did not fall within the policy's insuring terms, i.e., no coverage by reason of lack of inclusion.