Tuesday, June 17, 2008

Policy Submitted Under Attorney's Affirmation Held to Support Dismissal of DJ Complaint

Sirius Amer. Ins. Co. v. Bethel General Contracting, Inc.
(Sup. Ct., New York Co., decided 6/11/2008)

This is a DJ action relating to an underlying construction worksite accident/personal injury action. Sirius brought this DJ action against its named insured, Bethel General Contracting, which impleaded Tudor Insurance Company. Tudor insured one of Bethel's subcontractors, K&S Foundation Works.

Tudor moved to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7) based on the terms of K&S's policy with Tudor. Bethel was neither a named insured nor a named additional insured on that policy. The court also found that Bethel did not qualify as an additional insured under the Tudor policy's blanket insured section, because K&S had "opted out" by restrictive endorsement of the policy's only definition of an "insured contract" -- “[tlhat part of contract... pertaining to your business... under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization" -- that could have applied to make Bethel an additional insured.

Bethel did not dispute that it was neither a named insured nor a named additional insured on the Tudor policy, but instead opposed Tudor's motion based solely on the argument that the affirmation of Tudor's attorney was insufficient evidence of the terms of that policy.

In rejecting that argument and dismissing the complaint as against Tudor, with prejudice, New York County Supreme Court Justice Shirley Kornreich held:
Finally, contrary to Bethel’s assertion, the affirmation of an attorney without personal knowledge is an appropriate vehicle for submitting documentary evidence to the court (citation omitted). * * * A contract, like the insurance agreement submitted by Tudor, is the very type of document that may support dismissal under CPLR for a [sic] 3211 (a)(l). (Citations omitted). In any event, in reply, Tudor submitted an affidavit from a senior claims adjuster to authenticate the policy.
It is always better dispositive motion practice to sponsor insurance policy materials under an affidavit of a knowledgeable underwriting or claim representative of the insurer, even when submitting policies bearing a "certification" on their cover.

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