HERE DISCLAIMERS WERE UNNECESSARY BECAUSE THE ACTIVITY WHICH LED TO INJURY WAS NOT WITHIN THE OVERALL SCOPE OF THE POLICY-COVERAGE; HAD THE DISCLAIMERS BEEN BASED UPON AN EXCLUSION FROM COVERAGE, AS OPPOSED TO THE OVERALL SCOPE OF THE COVERAGE, THEY WOULD HAVE BEEN INVALID AS UNTIMELY.
The First Department determined the declarations page of defendant's insurance policy described what the policy covered, not exclusions from what otherwise would be covered. The distinction was crucial because the insurer was late in disclaiming coverage. If the disclaimers had been based upon an exclusion from coverage, the disclaimers would have been invalid as untimely. But because the disclaimers were based on the scope of the coverage of the policy, the disclaimers were unnecessary. Here it was deemed that injury from falling concrete during demolition of a chimney was outside the scope of the policy, which was limited to: (1) carpentry — interior … ; (2) dry wall or wallboard Installation” … ; (3) contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings … ; and (4) contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings … uninsured/underinsured … :
“Disclaimer pursuant to section 3420(d) [now § 3420(d)(2)] is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. By contrast, disclaimer pursuant to section 3420(d) is necessary when denial of coverage is based on a policy exclusion without which the claim would be covered” … .
… [T]he subject policy's classification limitations of coverage merely define the activities that were included within the scope of coverage “in the first instance” … and do not constitute exclusions from coverage that would otherwise exist. Stated otherwise, the relevant policy language of … the declarations page states the activities that are covered. If the loss in question did not arise from activities within the classifications set forth on the declarations page, then coverage is lacking “by reason of lack of inclusion” … , and “the policy as written could not have covered the liability in question under any circumstances” … . Black Bull Contr., LLC v Indian Harbor Ins. Co., 2016 NY Slip Op 00002, 1st Dept 1-5-16
INSURANCE LAW (NO DISCLAIMER NECESSARY WHERE INJURY CAUSED BY ACTIVITY OUTSIDE THE SCOPE OF THE POLICY)/DISCLAIMERS (INSURANCE LAW, NO DISCLAIMER NECESSARY WHERE INJURY CAUSED BY ACTIVITY OUTSIDE THE SCOPE OF THE POLICY)/EXCLUSIONS FROM COVERAGE (INSURANCE LAW, IF AN INSURER SEEKS TO ENFORCE A POLICY EXCLUSION, TIMELY DISCLAIMER REQUIRED)/DISCLAIMERS (IF AN INSURER SEEKS TO ENFORCE A POLICY EXCLUSION, TIMELY DISCLAIMER IS REQUIRED)