SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1119 

CA 11-00887 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ. 

 

MARK DZIELSKI AND COLLEEN DZIELSKI, 

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

ESSEX INSURANCE COMPANY, DEFENDANT-APPELLANT, 

ET AL., DEFENDANT.

 

HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

DAMON MOREY LLP, BUFFALO (KATHLEEN M. REILLY OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from a judgment (denominated order and judgment) of the

Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 17,

2010. The judgment, among other things, awarded plaintiffs the sum of

$950,000 against defendant Essex Insurance Company. 

It is hereby ORDERED that the judgment so appealed from is

modified on the law by reducing the award of $950,000 to $499,500,

plus interest, and as modified the judgment is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking judgment

declaring that defendant is obligated to indemnify its insured in the

underlying personal injury action commenced by plaintiffs, in which

defendant’s insured had defaulted. The underlying action arose from

injuries sustained by Mark Dzielski (plaintiff) when he fell from the

loading dock after exiting the rear door of a nightclub owned and

operated by defendant’s insured. On the evening in question,

plaintiff had provided sound equipment for a band that performed at

the nightclub, and the accident occurred while plaintiff was carrying

equipment from the nightclub to his truck after the concert had

concluded. According to plaintiffs, the accident was caused by

defects in the loading dock. In this action, Supreme Court granted

plaintiffs’ motion for summary judgment and denied defendant’s cross

motion for summary judgment, awarding judgment to plaintiffs in the

amount of the default judgment entered against defendant’s insured in

the underlying action, i.e., $950,000, together with interest and

costs. 

Defendant disclaimed coverage to its insured based on a “stage

hand” exclusion in the policy’s “Restaurant, Bar, Tavern, Night Clubs,

Fraternal and Social Clubs Endorsement.” That exclusion provides in
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CA 11-00887

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relevant part that “[t]he coverage under this policy does not apply to

‘bodily injury,’ . . . or any injury, loss or damage arising out of .

. . [i]njury to any entertainer, stage hand, crew, independent

contractor, or spectator, patron or customer who participates in or is

a part of any athletic event, demonstration, show, competition or

contest . . . .” It is axiomatic that, “to ‘negate coverage by virtue

of an exclusion, an insurer must establish that the exclusion is

stated in clear and unmistakable language, is subject to no other

reasonable interpretation, and applies in the particular case’ ” (Belt

Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383). We agree with

plaintiffs that the language “participates in or is a part of any . .

. show” is ambiguous, and that the court properly resolved that

ambiguity against the insurer, “particularly [because it is] an

exclusionary clause” (Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60

NY2d 390, 398). Although, as defendant suggests, the policy language

may be read broadly to encompass all persons who performed any tasks

in connection with the show, including loading and unloading sound

equipment, it may also reasonably be read narrowly to encompass only

those persons who actually performed in the show or were injured as a

result of activities occurring during the show. It is undisputed that

the accident occurred after the show had ended, and we note in

particular that the accident was caused by a defect in the premises

that was wholly unrelated to the show itself. We thus conclude that

the court properly determined that the exclusion does not apply in

this case. 

We reject defendant’s contention that the inclusion of the phrase

“arising out of” in the exclusion mandates the broader interpretation

espoused by defendant. Even assuming, arguendo, that the phrase

“arising out of” is interpreted as “originating from, incident to, or

having connection with” (Maroney v New York Cent. Mut. Fire Ins. Co.,

5 NY3d 467, 470 [internal quotation marks omitted]), we note that

coverage is excluded only if an accident originates from, is incident

to or has connection with a person’s “participat[ion]” in a “show.” 

Here, it cannot be said that there is no ambiguity concerning whether

the accident arose out of plaintiff’s participation in a show, which

in fact had ended before the accident occurred. 

We further conclude, however, that, pursuant to the insurance

policy in question, coverage for plaintiff’s accident is limited to

$500,000 per occurrence, with a $500 deductible. We therefore modify

the judgment by reducing the award from $950,000 to $499,500, plus

interest and costs.

All concur except FAHEY and PERADOTTO, JJ., who dissent and vote to

reverse in accordance with the following Memorandum: We respectfully

dissent because, in our view, the exclusionary language in the

applicable insurance policy is “ ‘clear and unmistakable . . ., is

subject to no other reasonable interpretation, and applies in th[is]

particular case’ ” (Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377,

383). We would therefore deny plaintiffs’ motion for summary

judgment, grant defendant’s cross motion for summary judgment, and

declare that defendant has no obligation to indemnify its insured in

the underlying personal injury action commenced by plaintiffs.
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CA 11-00887

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As noted by the majority, the underlying personal injury action

arose from injuries sustained by Mark Dzielski (plaintiff) when he

fell from a loading dock after exiting the rear door of a nightclub

owned and operated by defendant’s insured. On the night in question,

plaintiff, an independent contractor, had provided sound reinforcement

services, which included setting up sound equipment, for a band that

had performed at the nightclub. The accident occurred while plaintiff

was in the process of removing his sound equipment from the nightclub

at the conclusion of the show. According to plaintiffs, the accident

was caused by the defective nature of the loading dock. Plaintiffs

commenced the underlying personal injury action against defendant’s

insured, and the insured defaulted. Thereafter, plaintiffs commenced

this action seeking judgment declaring that defendant is obligated to

indemnify its insured in the underlying action. Supreme Court granted

plaintiffs’ motion for summary judgment and denied defendant’s cross

motion for summary judgment, awarding judgment to plaintiffs in the

amount of the default judgment entered against defendant’s insured in

the underlying action, i.e., $950,000, together with interest and

costs.

“Where the provisions of an insurance contract are clear and

unambiguous, the courts should not strain to superimpose an unnatural

or unreasonable construction” (Maurice Goldman & Sons v Hanover Ins.

Co., 80 NY2d 986, 987). Here, defendant disclaimed coverage to its

insured based on an exclusion in the policy’s “Restaurant, Bar,

Tavern, Night Clubs, Fraternal and Social Clubs Endorsement.” That

exclusion provides in relevant part that “[t]he coverage under this

policy does not apply to ‘bodily injury,’ . . . or any injury, loss or

damage arising out of . . . [i]njury to any entertainer, stage hand,

crew, independent contractor, or spectator, patron or customer who

participates in or is a part of any athletic event, demonstration,

show, competition or contest” (emphasis added). The exclusion thus

applies where two conditions are met: (1) the injured party is an

entertainer, stage hand, crew member, independent contractor,

spectator, patron or customer who “participates in or is a part of” an

athletic event, demonstration, show, competition or contest; and (2)

the injury “arises out of” such participation.

Contrary to the conclusion of the majority, we conclude that the

language “participates in or is a part of any . . . show” is not

ambiguous, and that plaintiff falls squarely within that language. As

noted above, plaintiff was hired by the band to provide sound

reinforcement services for the show, and thus there is no question

that he “participate[d] in or [wa]s a part of” the show on the night

of his accident. The majority’s conclusion that such clause may

“reasonably be read narrowly to encompass only those persons who

actually performed in the show or were injured as a result of

activities occurring during the show” is not supported by the plain

language of the exclusion. First, if the exclusion was intended to

apply only to those persons who “actually performed” in a show, then

the language “spectator, patron or customer” in the exclusion would be

superfluous. Second, such an interpretation imposes a temporal

limitation on the exclusion where no such limitation appears therein. 

Indeed, if defendant had intended to limit the exclusion in that
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CA 11-00887

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manner, it could have done so explicitly as it did in other provisions

of the policy (see Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d

467, 473). For example, the policy’s medical payments coverage

provision specifically excludes expenses for bodily injury “[t]o a

person injured while taking part in athletics” (emphasis added). 

Similarly, the policy’s “combination endorsement” excludes expenses

for bodily injury or personal injury to any person “while practicing

for or participating in any event or function of a sporting or

athletic nature” (emphasis added). Here, by contrast, the absence of

such limiting language in the exclusion in question reflects an intent

to provide a broad exclusion for all injuries arising from

participation in shows or other special events (see Maroney, 5 NY3d at

473).

We further conclude that plaintiff’s injury “ar[o]se[] out of”

his participation in the show within the meaning of the exclusion. In

the insurance context, the phrase “arising out of” has been broadly

interpreted to mean “originating from, incident to, or having

connection with” (Maroney, 5 NY3d at 472 [internal quotation marks

omitted]; see Regal Constr. Corp. v National Union Fire Ins. Co. of

Pittsburgh, PA, 15 NY3d 34, 38). Here, plaintiff’s accident occurred

while he was in the process of removing his sound equipment from the

nightclub. The process of packing up and removing sound equipment at

the conclusion of a show necessarily “originat[es] from, [is] incident

to, or ha[s] connection with” the show (Maroney, 5 NY3d at 472

[internal quotation marks omitted]). The fact that plaintiff’s

accident was allegedly caused by the defective nature of the loading

dock rather than any condition of the show itself does not remove

plaintiff’s injury from the policy exclusion. “[T]he focus of the

inquiry ‘is not on the precise cause of the accident but the general

nature of the operation in the course of which the injury was

sustained’ ” (Regal Constr. Corp., 15 NY3d at 38). Indeed, “the

phrase ‘arising out of’ . . . requires only that there be some causal

relationship between the injury and the risk for which coverage is

provided” (Maroney, 5 NY3d at 472), and such a causal relationship

clearly exists here. 

Entered: December 23, 2011 Frances E. Cafarell

Clerk of the Court