Zurich Am. Ins. Co. v ACE Am. Ins. Co.

Zurich Am. Ins. Co. v ACE Am. Ins. Co.

Opinion

 [*558]  [**468] Order, Supreme Court, New York County (Arthur F. Engeron, J.), entered July 25, 2017, which granted plaintiff insurer's (Zurich) motion for partial summary judgment declaring that the injured claimants qualified as insureds under defendant insurer's (ACE) policy, that ACE had a duty to defend in the underlying action, and [**469]  that Zurich was entitled to contribution and indemnification from ACE as the coverage provided by ACE's commercial general liability policy was primary to the Zurich automobile policy, unanimously reversed, on the law, with costs, the motion denied, and it is declared that ACE has no duty to reimburse plaintiff's costs in the underlying actions. The Clerk is directed to enter judgment so declaring.

The duty to defend does not attach where, as a matter of law, there is no basis on which the insurer may be held liable for indemnification (see Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876, 352 NE2d 139, 386 NYS2d 221 [1976]). The burden of establishing that a claim falls within a policy's exclusionary provisions rests with [***2]  the insurer (see Neuwirth v Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn., 62 NY2d 718, 719, 465 NE2d 353, 476 NYS2d 814 [1984]). Here, the claimants' signed statements and the accident reports are properly considered to clarify ambiguous pleadings and meet ACE's burden that the underlying claims fell within the scope of its automobile exclusion (see Striker Sheet Metal II Corp. v Harleysville Ins. Co. of New York, 2018 US Dist LEXIS 15892, *23-29, 2018 WL 654445, *9-10 [ED NY, Jan. 31, 2018, No. 2:16-cv-05916 (ADS) (AYS)]).

The commercial general liability coverage provided by ACE included the following "Aircraft, Auto or Watercraft" exclusion, which excluded: " 'Bodily injury' or 'property damage' arising out of the ownership, maintenance, use or entrustment to others of any aircraft, 'auto' or watercraft owned or operated by or [*559]  rented or loaned to any insured. Use includes operation and 'loading or unloading.' "

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