20

- 554

- cv County of Niagara v. Netherlands Insurance Co. et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT
. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WIT H THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION " SUMMARY ORDER " ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL
.
At a stated term of the United Stat es Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8 th day of December , two thousand twenty

.
PRESENT: ROBERT D. SACK, DENNY CHIN, RAYMOND J. LOHIER, JR. , Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

COUNTY OF NIAGARA , Plaintiff

- Appellant,

NIAG A RA COUNTY COMMUNITY COLLEGE, BOARD OF TRUSTEES

- NIAG A RA COUNTY COMMUNITY COLLEGE, Plaintiffs ,

- v - 20

- 554

- cv

NETHERLANDS INSURANCE COMPAN Y, EXCELSIOR INSURANCE COMPANY Defendant s

- Appellee s ,2 LIBERTY MUTUAL INSURANCE, PEERLESS INSURANCE COMPANY, T.G.R. ENTERPRISES, INC., MICHAEL LOMBARDO , Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR PLAINTIFF

- APPELLANT: MICHAEL J. WILLETT ( Brian P. Crosby , on the brief ), Gibson, McAskill & Crosby , Buffalo , New York

.

FOR DEFENDANT S

- APPELLEE S : MARSHALL T. POTASHNER , Jaffe & Asher LLP , White Plains , New York.
Appeal from the United States District Court for the Western District of

New York ( Geraci , C h

. J .).

UP ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgm ent of the d istrict c ourt is AFFIRMED

.
Plaintiff

- appellant County of Niagara (the "County") appeals the district

court ' s judgment, entered February 10, 2020, in favor of defendants

- appellees
Netherlands Insurance Company ("Netherlands") and Excelsior Insurance Company
("Excelsior")

. By decision and order entered February 7, 2020, the district court adopted
the report and recommendation of the magistrate judge (Foschio, M.J. ), and grant ed
summary judgment in favor of Netherlands and Excelsior and deni ed the County's
motion for summary judgment. We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.3 On November 7, 2007, the County contracted with T.G.R. Enterprises, Inc.
("TGR") for a c onstruction project at Niagara C ounty Community College

. Pursuant to

t he agreement, TGR procured insurance

-- including umbrella excess liability ( the

"Umbrella Policy ") issued by Excelsior

-- and name d the County as an additional

insured

. The Umbrella P olicy included a "Designated Automobile Liability Exclusion"
( the "Auto Exclusion"), which excluded from coverage any injury or dam age arising out

of "owned autos, " defined as "[t]hose 'autos' you own and any trailer you do not own
while attached to power units you own." J. App'x at 221. The Umbrella P olicy specified
that "the words 'you' and 'your' refer to the Named Insured shown in the Declarations,
and any other person or organization qualifying as a Named Insured under this policy."
J. App'x at 380.
On May 27, 2008, Michael Lombardo, an employee of TGR, was injured
while riding in the bed of a truck owned by TGR

. On July 18 , 2008, Lombardo served a

Notice of Claim on the County , and o n November 10, 2008, he commenced a personal
injury action against the County in New York state court.
On August 7, 2008, the County sent a letter to Reller Risk Management,
the insurance broker for TGR, tendering the claims alleged in Lombardo's Notice of

Claim. On August 1 3, 2008, Peerles s Insurance Company , the owner of Netherlands

and Excelsior, sent a letter on their behalf to TGR (the "Disclaimer Letter" ) , copying the4 County and disclaiming coverage under the Umbrella Policy

. 1 The Disclaimer Letter
contained the subje ct line: "Notice of Claim

-- Michael Lombardo v. County of Niagara,
et al." and stated that coverage was being denied for the "above captioned matter." J.
App'x at 427. The Disclaimer Letter quoted key portions of the Auto Exclusion
provision and cited r elevant facts regarding the circumstances of Lombardo's injury

.
The Cou nty filed this action in New York state court seeking a declaration
that one or more of the defendant insurance companies was obligated to defend and
indemnify it with respect to Lombardo's personal injury action. Following removal of

the case, t he district court granted summary judgment in favor of defendants and
entered judgment as set forth above

. The County now appeals.

" We review the district court's ruling on cross

- motions for summary
judgment de novo , in each case construing the evidence in the light most favorable to the

non

- moving party. " Schwebel v. Crandall , 967 F.3d 96, 102 (2d Cir. 2020).
New York law requires an insurer disclaim ing coverage to " give written
notice as soon as is reasonably possible

. . . to the insured and the injured person or any

other claimant

. " N.Y. Ins. Law § 3420(d)(2). That notice must "app rise the claimant
with a high degree of specificity of the ground or grounds on which the disclaimer is
predicated. " Gen. Acc ident Ins. Grp. v. Cirucci , 46 N.Y.2d 862, 864 (1979)

. The disclaimer

1 The Disclaimer Letter also denied coverage under a separate commercial general l iability insurance policy issued by Netherlands.5 must also "identif[y] the applicable policy exclusion and set forth th e factual basis for

the insurer' s position that the claim fell within a policy exclusion with sufficient
specificity to satisfy the statutory mandate and purpos e." Adams v. Perry's Place , 564
N.Y.S.2d 1019, 1019 ( App. Div. 4th Dep't 1990)

. The insure d must also, at minimum,

receive a copy of the disclaimer. See Centereach Realty, LLC v. Essex Ins

. Co. , 759 N.Y.S.2d
664, 664 ( App. Div. 1 st Dep 't 2003 ) (holding that insurer effectively disclaimed coverage
where the insured received a copy of the disclaimer)

. The County argues that the Disclaimer Letter was not sufficient because ,
inter alia , it was not addressed to the County, did not explicitly reference the County's

tender letter, did not provide a full copy of the Auto Exclusion provision , and failed to
include quotations of pertinent definitions

. We are unpersuaded. As the district court

noted, the Disclaimer Letter "expressly identified and disclaimed coverage" under the

Auto Exclusion. Special App'x at 56. Further, as Magistrate Judge Foschio observed in
his Report and Recommendation, "the Disclaimer Letter's subject line logically and
reasonably can only be interpreted as referring to the Notice of Claim " served on the
County. Special App'x at 40. Thus, while the letter may not have been ad dressed to the
County (it was addressed to TGR) , a copy was provided to the County's attorney, it
unambiguously notified the County of the reason for denying coverage, it included
specific language from the Auto Exclusion, and it provided the factual basis that6 triggered the Auto Exclusion's applicability . Accordingly, the Disclaimer Letter
effectively disclaimed coverage.

Next, t he County argues the terms "you" and "your" in the Auto Exclusion
were ambiguous because , in light of the Separation of Insureds provision, "you" and
"your" could refer either to the Named Insured (TGR) or other insured parties (the
County)

. Accordingly , the County argues that we should read any ambiguity in its
favor and hold that the Auto Exclusion does not apply , as the truck was not owned by
the County. This argument fails

.

" [ T ] he language of a contract is ambiguous if it is capable of more than one
meaning when viewed objectively by a reasonably intelligent person who has examined

the context of the entire integrate d agreement. " Lockheed Martin Corp. v. Retail Holdings,

N.V. , 639 F.3d 63, 69 (2d Cir. 2011). " [ A ] mbiguity does not exist simply because the
parties urge different interpretations." Hugo Boss Fashions, Inc. v. Fed. Ins. Co. , 252 F.3d
608, 616 (2d Cir. 2001) (internal quotation marks omitted).

T he terms "you" and "your" were expressly defined as referring to the

Named Insured, TGR

. The phrase "'autos' you own," therefore, unambiguously referred
to autos owned by TGR, notwithstanding the Separation of Insureds provision. See
DRK, LLC v. Burlington Ins. Co. , 905 N.Y.S.2d 58, 59

- 60 ( App. Div. 1st Dep't 2010)
(holding that separation of insureds provision did not render the term "any insured"
ambiguous); see also Robert P itt Realty, LLC v. 19

- 27 Orchard St

. , LLC , 955 N.Y.S.2d 563,7 564 ( App. Div. 1st Dep't 2012) (holding that separation of insureds provision " does not
negate the portion of the policy which precludes coverage to . . . the additional insured[]
when no coverag e is extended to . . . the named insured, on grounds of ambiguity")

. Accordingly, the Auto Exclusion unambiguously excludes from coverage injuries
arising from autos owned by TGR, as was the case here, and the Umbrella Policy d oes
not apply

.

* * *

We have considered the County's remaining arguments and conclude
they are without merit. Accordingly, we AFFIRM the judgment of the district court

.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk