Romco Structural Systems Corp. v. Axis Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROMCO STRUCTURAL SYSTEMS CORP.,

Plaintiff, MEMORANDUM & ORDER

v. 1:20-cv-2772 (ST)

AXIS INSURANCE COMPANY,

Defendant.

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TISCIONE, United States Magistrate Judge:

INTRODUCTION

This case involves an insurance dispute between an insured employer, Plaintiff, and its

excess liability insurer, Defendant. Plaintiff’s employee was injured at a construction site while

working for Plaintiff and brought an action in state court, which Plaintiff was eventually brought

into via a third-party complaint. Defendant disclaimed coverage for the injury, but Plaintiff

argues that disclaimer was both improper under the New York Insurance Law and a breach of its

insurance contract, and that it is entitled to coverage for the employee’s injury. Both parties have

moved for summary judgment. For the reasons detailed herein, Plaintiff’s motion for summary

judgment is DENIED, and Defendant’s motion for summary judgment is GRANTED.

BACKGROUND

The following facts are agreed upon by both parties.

Marel Dejesus Vargas Rojas fell from an elevated height on June 26, 2018, while

working on a construction project at 4890 Veterans Memorial Highway in Holbrook, New York.

Pl. R. 56.1 Br., ¶ 1, ECF No. 30-1. In his complaint in an action in state court seeking damages

for his injuries, Rojas alleges that at the time of his work accident, he was employed by Plaintiff.

Rojas Compl., ¶ 46, ECF No. 1, Ex. 1. Rojas’ suit was initially brought against several

defendants not named in this action, who allegedly owned or were responsible for the premises

and/or construction site at which Rojas was performing the construction work. Id. at ¶¶ 10-45.

Rojas alleged the defendants named in his action were negligent, and that negligence led to his

injuries. Def. R. 56.1 Br., ¶¶ 2-6, ECF No. 33-2. ROMCO was never named as a defendant by

Rojas. Id. at ¶ 7. On or around June 15, 2020, two of the defendants named in the Rojas action,

Above All Equities, Inc. and LS Steel, Inc., filed a third-party complaint against the Plaintiff in

this action, ROMCO, asserting claims for contribution, indemnity, and breach of contract. Pl. R.

56.1 Br., ¶ 51.

Plaintiff had three insurance policies at the time of Rojas’ accident, one of which is

relevant to this action. The first was a commercial liability policy provided by Admiral

Insurance Company in the amount of $1,000,000 per occurrence and $2,000,000 of general

aggregate coverage, effective November 8, 2017, to November 8, 2018. Id. at ¶ 29. The second

policy was a New York State Insurance fund policy effective at the time of Rojas’ accident. Def.

R. 56.1 Br., ¶ 41. The third, at issue here, was a policy issued by the Defendant to the Plaintiff

for excess liability coverage above and beyond the Admiral policy in the amount of $5,000,000.

Pl. R. 56.1 Br., ¶ 8. Above All Equites, Inc. and L.S. Steel, Inc., two defendants in the Rojas

action, were named as additionally insured on the policy, but only “with respect to liability for

‘bodily injury’ caused, in whole or in part, by: (1) [ROMCO’s] acts or omissions; or (2) [t]he

acts or omissions of those acting on [ROMCO’s] behalf; in the performance of [ROMCO’s]

ongoing operations for the additional insured(s).” Pl. R. 56.1 Resp. Br., ¶ 10, ECF No. 34-1.

The AXIS policy, when issued, contained two provisions pertinent to this action. The

first appears in the endorsements section and is listed as an exclusion endorsement for employee

or worker bodily injury. It says, “It is agreed that…this insurance does not apply to any liability

or damages arising out of any actual alleged injury to an employee or temporary worker of any

insured arising out of or in the course of employment by any insured…This exclusion applies

whether an insured may be liable as an employer or in any other capacity and to any obligation to

share damages with or repay someone else who must pay damages because of injury.” Mangino

Aff., Ex. Y, 122, ECF No. 33-3. The second pertinent provision appears separately as a New

York-specific “limits of insurance endorsement” and reads, “Excess coverage for employers’

liability is not applicable in situations where an employee is subject to New York Workers

Compensation Law, because employers’ liability coverage is unlimited in nature in New York

State.” Id. at 133.

There is extensive evidence in the record of why the policy contained these

endorsements. RT Specialty acted to procure the AXIS insurance policy for ROMCO. Def. R.

56.1 Br., ¶¶ 11-12. On both October 26, 2017, and November 8, 2017, ROMCO indicated to

AXIS that it had previously obtained workers’ compensation coverage for its employees. Id. at

¶¶ 10-11. On November 9, 2017, RT Specialty sent an email to AXIS, asking for a policy

providing $5 million in coverage in excess to the already obtained Admiral policy and stating

“[t]he excess doesn’t require labor law coverage” and asking that the policy include “a labor law

exclusion.” Id. at ¶ 12. AXIS responded that such a policy would cost $125,000. Id. at ¶ 15. On

November 14, at RT Specialty’s request, AXIS sent a quote for the policy which included the

requested exclusion. Id. at ¶¶ 17-18.

On November 20, 2017, RT Specialty emailed AXIS asking, “Can you tell me what your

price would be with labor law coverage?” Id. at ¶ 19. AXIS responded, “I can tell you it would

be considerably more and we would probably only support up to [$3 million] in limits.” Id. at ¶

20. RT Specialty asked AXIS to quote the policy with labor law coverage as well and, after

some back and forth, AXIS quoted a $3 million excess policy with labor law coverage at a

$280,000 premium. Id. at ¶¶ 21-26. On November 28, RT Specialty asked AXIS to move

forward with the $3 million policy with labor law coverage, but then, on November 29, advised

differently, writing, “The broker has confirmed that this insured would like to go with the

$5M/$5M quote with the labor law exclusion…Please bind coverage for the insured.” Id. at ¶¶

26-29. The binder sent to RT Specialty included the employee or worker bodily injury exclusion

and the New York limit endorsement. Id. at ¶ 30. The policy was then issued, effective from

November 29, 2017 to November 8, 2018. Id. at ¶ 31.

On March 20, 2018, RT Specialty emailed AXIS to ask, while acknowledging that the

“insured took the quote without labor law coverage,” whether ROMCO could buy back labor law

coverage and increase the policy limit. Id. at 32. Internal emails show that Simone Butler, an

AXIS representative, indicated to colleagues that she told the broker AXIS “could only

entertain” a $1 million policy that included labor law coverage and that AXIS “would have to

cancel the current policy” in order to award a policy with labor law coverage to ROMCO. Id. at ¶

34. On April 4, 2018, a quote was emailed for a new policy to RT Specialty but ROMCO, in the

end, chose not to purchase an excess insurance policy with labor law coverage, and the previous

existing policy from AXIS was never canceled. Id. at ¶ 37.

After Mr. Rojas’ accident, he filed his complaint in state court on July 18, 2018. Id. at ¶

1. On June 13, 2019, Mr. Rojas’ counsel sent AXIS a copy of the amended complaint which

included the information that Mr. Rojas was acting as an employee of ROMCO at the time of the

accident and copies of affidavits of service on defendants LS Steel Inc. and Above All Equities,

Inc. Id. at ¶ 42. On June 18, 2019, Jonathan Slade of AXIS acknowledged receipt of that email.

Id. at ¶ 43.

On December 10, 2019, Mr. Rojas’ counsel sent a letter to Admiral and AXIS in which

he informed them, “the reasonable value of Mr. Rojas’ claim handily exceeds” the Admiral and

AXIS policy limits.” Pl. R. 56.1 Br., ¶ 31. The communication included medical and expert

reports. Id at ¶ 32. On February 13, 2020, Mr. Rojas’ counsel sent AXIS a copy of the state

court’s decision granting Mr. Rojas partial summary judgment as to the liability of Above All

Equities, Inc. and LS Steel, Inc. Id. at ¶ 41.

On April 21, 2020, Thomas Maher, defense counsel representing LS Steel and Above All

Equities in the Rojas action, emailed Peter Waldron from AXIS, to inform him that, “there is a

possibility that your excess layer may be impacted in this case.” Mangino Aff., Ex. KK, 277. On

April 24, 2020, Peter Waldron, on behalf of AXIS, advised ROMCO that AXIS was disclaiming

coverage for ROMCO in the Rojas action, writing, “To date, AXIS has not received a notice of

claim or tender of defense or indemnity from Romco regarding the Lawsuit…However, out of an

abundance of caution, AXIS assumes for the purposes of this letter that Romco or another party

will seek coverage…AXIS disclaims coverage for the Lawsuit.” Id. at ¶ 47; Mangino Aff., Ex.

LL, 280. The bases for the disclaimer were the policy’s New York limitation and the employee

or worker bodily injury exclusion endorsement. Id. at ¶¶ 46-47.

On June 5, 2020, ROMCO’s counsel wrote to AXIS, demanding that it rescind the

disclaimer and provide the excess coverage ROMCO believed owed to it. Id. at ¶ 49. A third-

party complaint was filed against ROMCO in the Rojas action by Above All Equities, Inc. and

LS Steel, Inc. on June 15, 2020, seeking contribution and indemnity from ROMCO. Id. at ¶ 51;

Mangino Aff., Ex. MM, 296.

ROMCO filed the complaint in the instant action on June 23, 2020. In the complaint,

ROMCO alleges the AXIS disclaimer of coverage, which occurred over ten months after

receiving written notice from Mr. Rojas’ counsel but before any claim was filed by ROMCO,

was untimely and improper, as well as invalid under New York Insurance Law § 3420. Pl.

Compl., ¶¶ 23-24, ECF No. 1. It also alleges breach of contract for AXIS’ disclaimer. Id. at ¶¶

46-48. ROMCO seeks damages, as well as a declaratory judgment that the AXIS policy was in

effect on the date of loss in the Rojas action; the disclaimer by AXIS was untimely, improper,

and is invalid; AXIS is estopped from disclaiming coverage under New York Insurance law §

3420; the AXIS policy provides coverage for Mr. Rojas’ claims to both itself and the additional

insured parties; and that ROMCO is entitled to costs and attorneys’ fees. Id. at ¶¶ 45, 48.

Both parties have moved for summary judgment on all claims.

LEGAL STANDARD

I. Summary Judgment Standard

Summary judgment is appropriate when the movant “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). An issue of fact is material if the fact “might affect the outcome of the suit under

the governing law…” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A genuine

dispute exists as to a material fact when “evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

On motions for summary judgment, the moving party bears the initial burden of

establishing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party meets that burden, the non-moving party must then show there is a

genuine dispute for trial. Id. The burdens on both parties as to the underlying elements are

aligned as they would be at trial. Id. at 254.

When considering a motion for summary judgment, the Court must construe “all

ambiguities and draw all permissible factual inferences in favor of the party against whom

summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting

Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).

II. New York Law

This Court hears this contract law case sitting in diversity jurisdiction. As such, the

substantive law to be applied is state law. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

“A federal court sitting in diversity much apply the choice of law rules of the forum

state.” Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1538-39 (2d Cir. 1997).

In deciding which state’s law to apply in an insurance dispute, New York courts consider “a

spectrum of significant contacts, including the place of contracting, the places of negotiation and

performance, the location of the subject matter, and the domicile or place of business of the

contracting parties.” Id. at 1539. Here, the insurance, containing provisions specific to New

York, was issued in New York to Plaintiff, which is a New York corporation, and Mr. Rojas’

accident, the incident coverage is sought for, occurred in New York. See Compl. ¶ 1; Mangino

Aff., Ex. Y, Rojas Compl. ¶ 12. Both parties cite New York law in their briefs, and the Court

finds that, based on the significant contacts in this case, New York law applies.

Under New York law, “an insurance agreement is subject to principles of contract

interpretation.” Universal Am. Corp. v. Nat. Union Fire Ins. Co., 25 N.Y.3d 675 (2015). An

insurer is “entitled to have its contract of insurance enforced in accordance with its provisions

and without a construction contrary to its express terms.” Bretton v. Mutual of Omaha Ins. Co.,

110 N.Y.S.2d 760, 763 (1985). “An insurance contract is interpreted to give effect to the intent

of the parties as expressed in the clear language of the contract.” Parks Real Estate Purchasing

Crp. V. St. Pail Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006) (internal quotation marks

omitted). However, “any ambiguities are construed in favor of coverage.” Randolph v.

Nationwide Mut. Fire Ins. Co., 662 N.Y.S.2d 650, 651 (1997); see also Patriarch Partner LLC v.

AXIS Ins. Co., 758 Fed. Appx. 14, 20 (2d Cir. 2018) (“Any ambiguities are to be construed in

favor of the insured.”). The first step under New York law for interpreting an insurance

agreement is for the court to determine whether the contract is unambiguous with respect to the

question at issue. SCW West LLC v. Westport Ins. Corp., 856 F. Supp. 2d 514, 524 (E.D.N.Y.

2012).

The interpretation of a contract is a question of law where the language of the contract is

unambiguous. Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir. 1985).

Where the language is susceptible to two reasonable interpretations, the proper interpretation is a

question of fact. Id.

DISCUSSION

I. AXIS Had No Duty to Disclaim Coverage Under N.Y. Insurance Law § 3420(d)

a. The Unambiguous Language of the Policy Excluded Claims Like That of Mr.

Rojas In the First Instance

The question of ambiguity of the initial insurance contract takes on even greater

importance here as New York courts have held that the construction of the original insurance

contract affects the insurer’s obligation under the New York Insurance Law to disclaim coverage

within a reasonable time.

N.Y. Insurance Law § 3420(d)(2) says, “If under a liability policy issued or delivered in

this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising

out of…[an] accident occurring within this state, it shall give written notice as soon as is

reasonably possible of such disclaimer of liability or denial of coverage to the insured…” N.Y.

Ins. Law §3420(d)(2). An unreasonable delay in disclaiming coverage by an insurer under

§3420(d)(2) estops that insurer from raising the defense of non-coverage at a later time. See

Adams v. Chi Ins. Co., 49 Fed. Appx. 346, fn. ** (2d Cir. 2002) (“In the event that an insurer

unreasonably delays under [§ 3420(d)], an insured need show no prejudice in order to prevent the

insurer from disclaiming coverage.”)

However, such waiver and estoppel cannot create coverage. Albert J. Schiff Assoc., Inc. v.

Flack, 51 N.Y.2d 692, 698 (1980). The purpose of the disclaimer provision within the New

York Insurance Law was “to avoid prejudice to the insured…[who] could be harmed by delay in

learning of the carrier’s position.” Zappone v. Home Ins. Co., 55 N.Y.2d 131, 137 (1982). “It

was not, however, to provide an added source of [coverage] which had never been contracted for

and for which no premium had ever been paid.” Id. “For the insured to extend its coverage to

more than it originally bargained, it would have had to enter into a supplemental contract

expanding the insuring clause or contracting the exceptions,” it cannot rely on §3420(d)(2) to do

that for it. Schiff Assoc., Inc., 51 N.Y.2d at 698.

Thus, an analysis of the duty to disclaim under the NY Insurance Law becomes a

question of whether the AXIS policy “in the first instance” included some coverage for injuries

like those Mr. Rojas suffered. Worcester Ins. Co. v. Bettenhauser, 95 N.Y.2d 185, 188 (2000). If

it did, we deal with a situation where there is no coverage “by reason of exclusion,” which would

trigger a duty by AXIS to disclaim within a reasonable time under §3420(d). Zappone, 55

N.Y.2d at 137. The Court would then consider whether to measure that reasonable time from the

time of first knowledge of Mr. Rojas’ action or from the time a claim was actually made and

assess whether that time was reasonable. However, if the insurance contract between Plaintiff

and Defendant never included coverage of injuries like those Mr. Rojas suffered, we would be

dealing with a “lack of inclusion” of coverage in the original bargained-for contract, under which

the New York courts have ruled the insurer has no duty to disclaim and by which coverage

cannot be created by failing to do so. Id. The question of whether AXIS had a duty to disclaim

coverage of Mr. Rojas’ injuries, therefore, is a question of contractual interpretation.

When assessing coverage in the first instance in an insurance contract, New York courts

have held what is covered “is not merely what is found under the heading ‘insuring agreement.’

Just as this clause affirmatively indicates the coverage which is included, so does the ‘exclusion’

clause tell us expressly what is not. In policies so drawn, the protection the insured has purchased

is the sum total or net balance, however one labels it, of a coming together of the two. For it is

not either alone, but the combination of both which defines the scope of the protection afforded –

no more and no less.” Schiff Assoc., Inc., 51 N.Y.2d at 697.

The text of the insurance contract is clear it does not cover any claims by ROMCO’s

construction employees for bodily injury sustained while on the job. While the policy does

provide $5,000,000 in excess liability insurance to ROMCO, which the policy notes is engaged

in “steel construction,” it also contains several exclusions and limits. See Mangino Aff., Ex. Y,

118. At the heading of the first exclusion, which excludes “employee or worker bodily injury,”

it reads, “This endorsement changes the policy. Please read it carefully.” Id at 122. That

exclusion reads, in relevant part, “This insurance does not apply to any liability or damages

arising out of any actual or alleged injury to an employee…arising out of and in the course of []

employment by any insured.” Id. It continues, “This exclusion applies whether an insured may

be liable as an employer or in any other capacity and to any obligation to share damages with or

repay someone else who must pay damages because of the injury.” Id.

Here, Plaintiff seeks coverage for the claims contained within the Rojas action. In Mr.

Rojas’ complaint, he alleges he was employed by ROMCO on the day of his accident, that he

was engaged in the labor he was hired by ROMCO to perform when the accident occurred, and

that he was seriously injured when he fell from an elevated height while performing that work.

Rojas Compl., ¶¶ 46, 48, ECF No 1-1. He is therefore alleging damages arising out of injury to

an employee in the course of his employment by the insured, ROMCO, precisely what is

expressly and unequivocally not covered in the policy. And it matters not that some of the

original Rojas defendants seek contribution from ROMCO for Mr. Rojas’ injury, as opposed to

Mr. Rojas directly. The exclusion specifically says that it applies in all cases including when

there is “any obligation to share damages with or repay someone else who must pay damages

because of the injury.” Mangino Aff., Ex. Y, 122.

Instead of dealing with this point, Plaintiff presumes §3420(d) imposed an obligation on

AXIS to disclaim because “excess insurers have an obligation to timely disclaim pursuant to

Insurance Law § 3420(d).” Pl. Br., 13. But just as excess insurers are obligated to disclaim

where they have a duty to do so, they, just like primary insurers, have no duty to disclaim where

coverage did not exist in the first instance. See Illinois Union Ins. Co. v. Grandview Palace

Condominiums Assn., 155 A.D.3d 459, 460 (N.Y. App. 2017) (“We reject [] attempts to create

coverage where none exists under the policy by arguing that [the primary and excess insurers]

waived the [exclusion] or are otherwise estopped to invoke it.”). Instead of dealing with this

issue, Plaintiff spends much of its brief discussing when the clock started on the duty to disclaim

and whether the time taken was reasonable. As this Court finds the AXIS insurance policy

unambiguously did not include coverage for bodily injury claims by ROMCO employees and

there was no duty to disclaim, there is no triable issue of fact regarding whether the time AXIS

took to disclaim was reasonable. Because the policy itself unambiguously said the insurance

would not apply to an injury like Mr. Rojas’, AXIS had no duty to disclaim as a matter of law.

Plaintiff also attacks the other provision relied upon by Defendant in arguing the policy

excluded coverage for Mr. Rojas’ claim in the first instance, the New York Limits of Insurance

Endorsement. That limitation reads, “Excess coverage for Employer’s Liability is not applicable

in situations where an employee is subject to New York Workers Compensation Law, because

Employers’ Liability Coverage is unlimited in nature in New York State.” Id. at 133. Plaintiff

argues this provision would only apply where common law indemnity or contribution were

asserted based upon a ROMCO employee suffering a grave injury under N.Y. Workers’

Compensation Law § 11. Pl. Br., 15-16.

NYWCL § 11 provides, “An employer shall not be liable for contribution or indemnity to

any third person based upon liability for injuries sustained by an employee acting within the

scope of his or her employment for such employer unless such third person proves through

competent medical evidence that such employee has sustained a grave injury…” N.Y. Workers

Compensation Law § 11. This section was part of a reform to ensure immunity for tort liability

for employers who provide workers’ compensation coverage by exposing them to third-party

liability only when the employee had suffered grave injuries. Rubeis v. Aqua Club Inc., 3 N.Y.3d

408, 415 (2004).

Though Plaintiff may not be liable under § 11 to any third-party unless Mr. Rojas

suffered grave injury, that is not the question here. Here, the question is whether the New York

Limits of Insurance applies to Mr. Rojas’ claims, which ROMCO seeks coverage for. The

limitation’s plain language says the excess coverage does not extend “where an employee is

subject to New York Workers Compensation Law.” Mangino Aff., Ex. Y, 133. The limitation is

not governed by the employer’s liability to third parties for that employee’s injury. Instead, the

plain language of the limit excludes coverage where an employee is subject to the NY Workers

Compensation Law.

In the “Application” section of the NY Workers Compensation Law, it says,

“Compensation shall be payable for injuries or death incurred by employees in the following

employments” and lists “construction” as one such employment type. N.Y. Workers

Compensation Law § 3. Both sides agree that, when Mr. Rojas sustained his accident, he was

working at a construction project, and he alleges he was working there as a laborer. Def. R. 56.1

Br., ¶ 4; Rojas Compl., ¶ 46. It is clear that the insurance policy did not contemplate any

coverage for any incident where an employee was subject to the N.Y. Workers Compensation

Law, and it seems equally clear that Mr. Rojas was subject to the law when he was injured.

Therefore, Plaintiff’s arguments about whether Mr. Rojas’ alleged injuries were “grave” as

defined under § 11 are irrelevant to whether the limitation applies.

The plain language of both the employee or worker bodily injury exclusion and the New

York Limits of Insurance unambiguously show that, when Plaintiff and Defendant contracted for

insurance, the insurance contracted for did not include coverage of claims arising out of

ROMCO’s employees’ bodily injuries suffered in the course of employment. As such,

Defendant had no duty to disclaim, and summary judgment is granted to it on Plaintiff’s N.Y.

Insurance Law claim.

b. Even if the Plain Contract Language Were Ambiguous, the Record Shows

the Parties Intended to Contract for Insurance that Did Not Include

Coverage of Injuries Like Mr. Rojas’

I have already noted that the language of the insurance contract is unambiguous in

excluding coverage to bodily injury suffered by ROMCO’s employees in the scope of their

employment. However, I note that even if the Court had found the language ambiguous, there is

strong extrinsic evidence to show the parties’ intent at the formation of the contract was to

exclude coverage for injuries like Mr. Rojas’. See Hastings Dev., LLC v. Evanston Ins. Co., 701

Fed. Appx. 40, 42 (2d Cir. 2017) (citing Olin Corp. v. Am. Home Assur. Co., 704 F.3d 89, 99 (2d

Cir. 2012)).

As detailed in the fact section above, the record shows the parties specifically negotiated

regarding the inclusion or exclusion of “labor law coverage,” that Plaintiff noted it agreed to the

contract without such coverage, and that Plaintiff made subsequent inquiries about purchasing a

new policy that, unlike its current policy, included labor law coverage. Yet, Plaintiff did not

procure that coverage. The New York Labor Law contains provisions which impose “absolute

liability on owners, contractors, and their agents for injuries to workers engaged in the erection,

demolition, repairing, altering, painting, cleaning or pointing of a building or structure, which

result from falls from ladders, scaffolding, or other similar elevation devices that do not provide

proper protection against such falls.” Orellano v. 29 E. 37th Street Realty Corp., 292 A.D.2d

289, 290 (N.Y. App. 2002) (internal quotation marks omitted).

Mr. Rojas alleges that he suffered his injury in a fall because defendants failed “to

provide [Rojas] with…safe, proper and/or any scaffolding and/or ladder and/or harness and/or

safety lines for use in his work…” Rojas Compl., ¶ 56. The insurance contract before this Court

resulted from a specific choice by Plaintiff to purchase a policy that did not contain coverage for

this type of incident and instead included the employee bodily injury exclusion and New York

limitation. Plaintiff did so, presumably, because adding such coverage would have resulted in a

lower policy limit and a much higher policy premium, which Plaintiff chose to forgo. This is

strong evidence that Plaintiff understood this policy would not cover injuries like Mr. Rojas’

when it contracted with Defendant and now attempts to add that coverage via waiver and

estoppel, which is impermissible under New York law.

II. The Insurance Contract Did Not Include Coverage for Mr. Rojas’ Injuries, and,

Thus, Defendant Did Not Breach Its Contract

Plaintiff’s second cause of action is a breach of contract claim against Defendant. Under

New York law the insured must prove four elements to show breach of contract: (1) the making

of a contract; (2) plaintiff’s performance; (3) defendant’s breach; and (4) damages. Olin Corp. v

Lamorak Ins. Co., 332 F. Supp. 3d 818, 839 (S.D.N.Y. 2018). It is the policyholder’s burden to

show the insurance contract covers the loss. Id. (citing Morgan Stanley Grp. Inc. v. New England

Ins. Co., 225 F.3d 270, 276 (2d Cir. 2000)).

Here, by its unambiguous language, the insurance contract does not cover the loss. The

language in the New York limitation and the worker’s bodily injury exclusion is clear and

unambiguous and, for the reasons discussed above, clearly precludes coverage for Mr. Rojas’

bodily injury. Plaintiff offers no argument for why the policy would cover this claim, other than

under a theory of waiver and estoppel, which is incorrect as a matter of law.

Therefore, summary judgment should be granted to Defendant on this claim as well.

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for summary judgment is DENIED and

Defendant’s motion for summary judgment is GRANTED. The Clerk of the Court is

respectfully directed to enter judgment accordingly and close the case.

SO ORDERED.

_______-/s-/_______________

Steven L. Tiscione

United States Magistrate Judge

Eastern District of New York

Dated: Central Islip, New York

March 31, 2022