You are here: / / INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED...
,

INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS.

The Fourth Department determined defendant insurance company had a duty to defend in this toxic tort case brought by residents in the vicinity of plaintiff business (Hillcrest) which allegedly contaminated the area with hazardous materials. Although the policy excluded coverage for damages caused by hazardous material, the complaint also alleged Hillcrest caused a “malodorous condition” which, the court reasoned, was not necessarily related to hazardous materials:

​

It is well settled that an insurance company’s duty to defend is ” exceedingly broad,’ ” and is broader than the duty to indemnify … . The duty to defend arises whenever allegations of an underlying complaint suggest ” a reasonable possibility of coverage,’ ” even if facts outside the pleadings ” indicate that the claim may be meritless or not covered’ ” … . “[U]pon a motion such as this[,] the court’s duty is to compare the allegations of the complaint to the terms of the policy to determine whether a duty to defend exists” … .

Moreover, “exclusions are subject to strict construction and must be read narrowly” … . “In order to establish that an exclusion defeats coverage, the insurer has the heavy burden’ of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts” … .

Here, liberally construing the allegations set forth in the second amended complaint in the underlying action … , we conclude that there is a reasonable possibility of coverage, and that defendant therefore did not meet its heavy burden of establishing as a matter of law that the hazardous materials exclusion precludes coverage. The tort plaintiffs alleged in the second amended complaint that the Hillcrest plaintiffs’ operation of the facility “caused a malodorous condition to be created in the surrounding neighborhood.” Although many of the factual assertions in the second amended complaint allege that the odor resulted from hazardous materials, those are not the only factual allegations therein. Indeed, foul odors are not always caused by the discharge of hazardous materials. Inasmuch as there is a reasonable possibility of coverage, the court properly declared that defendant is obligated to defend the Hillcrest plaintiffs in the underlying tort action and ordered defendant to reimburse them for the cost of the defense. Hillcrest Coatings, Inc. v Colony Ins. Co., 2017 NY Slip Op 04613, 4th Dept 6-9-17

 

INSURANCE LAW (TOXIC TORTS, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/TOXIC TORTS (INSURANCE LAW, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/DUTY TO DEFEND (INSURANCE LAW, TOXIC TORTS, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)

You might also like
THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT).
DEFENDANT’S REQUEST TO PROCEED PRO SE, MADE ON THE EVE OF TRIAL, WAS NOT UNTIMELY AND SHOULD NOT HAVE BEEN SUMMARILY DENIED ON THAT GROUND, NEW TRIAL ORDERED.
DEFENDANT THREW BAGS OF COCAINE ONTO THE FLOOR IN PLAIN SIGHT OF POLICE OFFICERS, NOT SUFFICIENT TO SUPPORT TAMPERING WITH EVIDENCE CHARGE.
ASKING DEFENDANT WHY HE WAS NERVOUS AND WHETHER HE WAS CARRYING DRUGS DEEMED INVASIVE QUESTIONING, SUPPRESSION GRANTED.
FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).
Finding by Workers’ Compensation Law Judge Precluded Suit Under Labor Law and Common Law Negligence
DEFENDANTS’ ATTORNEYS SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE THEY HAD REPRESENTED PLAINTIFFS’ TRUSTEE, A NONPARTY, IN AN UNRELATED MATTER (FOURTH DEPT).
RESENTENCING IN SUPREME COURT AFTER CONVICTION IN COUNTY COURT WAS ILLEGAL (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING... DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE...