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Supreme Court of New York, Appellate Division, Third Department
March 3, 2011, Decided; March 3, 2011, Entered
[**239] [*1326] Lahtinen, J. Appeal from an order of the Supreme Court (Teresi, J.), entered October 19, 2009 in Greene County, which, among other things, granted plaintiff's motion for summary judgment declaring that it had no duty to defend or indemnify defendant Grande Stone Quarry, LLC in an underlying action.
The underlying accident in this insurance coverage dispute occurred when the operator of an all terrain vehicle (hereinafter [*1327] ATV) entered the insured's real property and was in a single vehicle accident allegedly caused by a dangerous condition on the insured's property. Defendant William Matter sustained personal injuries when the ATV he was operating went down a steep embankment on property owned by defendant Grande Stone Quarry, [***2] LLC in the Town of Coxsackie, Green County. Grande was insured under a commercial general liability (hereinafter CGL) policy issued by plaintiff. Upon receiving notice of a potential claim by Matter against Grande, plaintiff notified Grande that the accident was not covered. Plaintiff cited to an endorsement in form ME-001, amending the policy, which provided in paragraph 10: "This insurance does not apply to 'bodily injury', 'property [****2] damage', 'personal injury, 'advertising injury' or any injury, loss, or damages, including consequential injury, loss or damage, arising out of, caused by or contributed to: a. by ownership, non-ownership, maintenance, use, or entrustment to others of any 'auto', aircraft, watercraft, snowmobile, all terrain vehicle (ATV), or motorcycle. Use includes operation and 'loading' and 'unloading'."
Matter, and his wife derivatively, eventually sued Grande for injuries allegedly sustained in the ATV accident on Grande's property. Plaintiff then commenced this action against defendants seeking a declaratory judgment that it had no duty to defend or indemnify. Plaintiff moved for summary judgment, all defendants opposed the motion, and Grande cross-moved for summary [***3] judgment declaring that [**240] plaintiff had a duty to defend and indemnify. Supreme Court denied Grande's cross motion and granted plaintiff's motion, declaring that plaintiff had no duty to defend or indemnify. Defendants appeal.
] "The law governing the interpretation of exclusionary clauses in insurance policies is highly favorable to insureds" (Pioneer Tower Owners Ass'n v. State Farm Fire & Cas. Co., 12 NY3d 302, 306, 908 NE2d 875, 880 NYS2d 885 ). ] An exclusion must be specific and clear, and will be narrowly construed and enforced only when the insurer establishes that the pertinent language is "subject to no other reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311, 476 NE2d 272, 486 NYS2d 873 ; see Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d at 307, 908 NE2d 875, 880 NYS2d 885; Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 138, 850 NE2d 1152, 818 NYS2d 176 ). ] If the language is ambiguous, the ambiguity will be construed in favor of the insured, and ] "the test to determine whether an insurance contract is ambiguous focuses on the reasonable expectations of the average insured upon reading the policy and employing common speech" (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327, 668 NE2d 392, 645 NYS2d 421  [internal citation omitted]; see Villanueva v Preferred Mut. Ins. Co., 48 AD3d 1015, 1016, 851 NYS2d 742 ).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
82 A.D.3d 1326 *; 918 N.Y.S.2d 238 **; 2011 N.Y. App. Div. LEXIS 1530 ***; 2011 NY Slip Op 1555 ****
[****1] Essex Insurance Company, Respondent, v Grande Stone Quarry, LLC, et al., Appellants.
Prior History: Essex Ins. Co. v. Grande Stone Quarry, LLC., 2009 N.Y. Misc. LEXIS 6180 (N.Y. Sup. Ct., Sept. 30, 2009)
insured, ambiguity, indemnify
Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, General Overview, Exclusions, Ambiguous Terms, Construction Against Insurers, Ordinary & Usual Meanings, Reasonable Expectations, Reasonable Person, Commercial General Liability Insurance, Exclusions, Motor Vehicles