# Samsung Fire & Marine Insurance Company, Ltd. v. Liberty Mutual Fire Insurance Company

> District Court, S.D. New York · February 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10339030

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10339030

## How later opinions describe it (automated extraction)

- holding, under the same provision, that a general contractor was an insured based on a judicial determination that under the Labor Law the general contractor was vicariously liable for the subcontractor’s conduct which caused the plaintiff employee’s injuries

## Opinion text

UNITED STATES DISTRICT COURT DOC #:
DATE FILED: 2/28/2 022
SOUTHERN DISTRICT OF NEW YORK
SAMSUNG FIRE & MARINE INSURANCE
COMPANY, LTD.,
1:20-cv-4809-MKV
Plaintiff,
OPINION AND ORDER GRANTING
-against- DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND DENYING
LIBERTY MUTUAL FIRE INSURANCE PLAINTIFF’S MOTION FOR SUMMARY
COMPANY, JUDGMENT
Defendant.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff Samsung Fire & Marine Insurance Company brings this action for a declaratory
judgment against Defendant Liberty Mutual Fire Insurance Company. (See Compl. [ECF No. 1-
1]). The parties have cross moved for summary judgment. [ECF No. 34]; [ECF No. 39]. For
the reasons discussed below, Liberty Mutual’s motion is granted and Samsung’s motion is
denied.
BACKGROUND
I. The Underlying Action
In August 2016, Joseph C. Darretta (“Darretta”) commenced an action entitled Joseph C.
Darretta v. Ralph & Flatlands Associates, LLC, Telco of Ralph Avenue, Inc., T&E Stores, Inc.,
Index No. 513977/2016, in the Supreme Court of the State of New York, County of Kings (the
“Underlying Action”), against Ralph & Flatlands, Telco, and T&E Stores. (Joint Local Rule
56.1 Statement of Undisputed Facts (“JSUF”) [ECF No. 27-1] ¶¶ 19–20). Darretta subsequently
filed an Amended Complaint adding Ralph Operating and Flatlands Shopping Center as
defendants to the Underlying Action.1 (JSUF ¶ 23). Darretta alleged that he was a delivery
person for United Parcel Service, Inc. (“UPS”) and, on July 29, 2015, made a delivery to Telco.
(JSUF ¶¶ 39, 43). Darretta pulled into the docking area at the rear of a building located at 1910
Ralph Avenue, Brooklyn, NY 11234 a/k/a 1890-1960 Ralph Avenue, Brooklyn, NY 11234 (the

“Premises”) to make the delivery. (JSUF ¶¶ 24–27, 29, 35, 39, 43, 56). Darretta alleged that he
was walking along the outside of the passenger side of his truck, toward the rear, when he
stepped on debris located on the floor of the loading dock area, a broom stick handle, and
suffered a bodily injury. (JSUF ¶¶ 41, 50, 57–60, 62, 64, 66, 88, 91–92). He was not carrying
anything at the time of the accident and had not yet opened the truck to remove packages. (JSUF
¶¶ 62, 64, 93).
In the Underlying Action, Darretta alleged that the Underlying Defendants were negligent
“in the ownership, maintenance, operation management and control of” the Premises. (JSUF
¶ 29). There was no claim in the Underlying Action that any injury was related to the negligent
use or maintenance of the UPS truck. (JSUF ¶¶ 63, 64, 90). Darretta did not assert a cause of

action seeking to hold the Underlying Defendants liable for the conduct of UPS or himself.
(JSUF ¶¶ 28, 31–32, 38). Neither the Complaint nor the Amended Complaint in the Underlying
Action mentions any auto, vehicle, or truck. (JSUF ¶¶ 21, 30). Moreover, neither the Complaint
nor the Amended Complaint mention UPS. (JSUF ¶¶ 22, 31). Neither the Complaint, Amended
Complaint, nor the Verified Bill of Particulars in the Underlying Action mention the loading or

1 Ralph & Flatlands, Telco, T&E Stores, Ralph Operating, and Flatlands Shopping Center are hereinafter referred to
as the “Underlying Defendants.”
unloading of any vehicle. (JSUF ¶¶ 47). It is undisputed that the Underlying Action alleges a
premises liability claim. (JSUF ¶ 48).
By Order dated October 2, 2019, the Court in the Underlying Action granted the motion
of Ralph & Flatlands and Flatlands Shopping Center for Summary Judgment and granted

Darretta’s cross-motion for Summary Judgment against Telco, T&E Stores, and Ralph Operating
on the issue of liability. (JSUF ¶¶ 46, 49).
II. The Samsung Policy
Samsung issued a Commercial Package Policy to T&E Stores as a named Insured for the
policy period from October 1, 2014 to October 1, 2015 (the “Samsung Policy”). (JSUF ¶ 8).
The Samsung Policy included a Commercial Auto – Business Auto Coverage Part and a General
Liability Coverage Part. (JSUF ¶¶ 9, 16). The General Liability Coverage Part contained an
exclusion for “‘Bodily Injury’ . . . arising out of the ownership, maintenance, use or entrustment
to others of any . . . ‘auto’ . . . owned or operated by or rented or loaned to any insured. Use
includes operation and ‘loading or unloading.’” (JSUF ¶ 18).

Samsung handled and paid for the defense and settlement for the Underlying Action
under the General Liability Coverage Part of the Samsung Policy. (JSUF ¶¶ 54–55).
III. The Liberty Mutual Policy
Liberty Mutual issued a Business Auto Policy with a policy period from January 1, 2015
to January 1, 2016 to UPS as the named Insured (the “Liberty Mutual Policy”). (JSUF ¶ 1). The
insuring agreement of the Liberty Mutual Policy provides, in relevant part:
SECTION II – Liability Coverage
A. Coverage
We will pay all sums an “insured” legally must pay as damages
because of “bodily injury” or “property damage” to which this
insurance applies, caused by an “accident” and resulting from the
ownership, maintenance or use of a covered “auto”.
. . .
We have the right and duty to defend any “insured” against a “suit”
asking for such damages or a “covered pollution cost or expense”.
However, we have no duty to defend any “insured” against a “suit”
seeking damages for “bodily injury” or “property damage” or a
“covered pollution cost or expense” to which this insurance does
not apply. We may investigate and settle any claim or “suit” as we
consider appropriate. Our duty to defend or settle ends when the
Liability Coverage Limit of Insurance has been exhausted by
payment of judgments or settlements.
(JSUF ¶ 4). The Liberty Mutual Policy further provides:
1. Who Is An Insured
The following are “insureds”:
a. You for any covered “auto.”
b. Anyone else while using with your permission a
covered “auto” you own, hire or borrow
. . .
c. Anyone liable for the conduct of an “insured”
described above but only to the extent of that liability.
(JSUF ¶ 5 (inapplicable “exceptions” omitted)). The Liberty Mutual Policy defines the terms
“you” and “your” as “refer[ing] to the Named Insured shown in the Declarations.” (JSUF ¶ 7).
IV. Tenders And Responses
On October 3, 2019, Samsung first sent a letter tendering the defense and indemnity of
the Underlying Defendants in connection with the Underlying Action to Liberty Mutual. (JSUF
¶¶ 73–74). Samsung did not advise Liberty Mutual that liability had already been determined
against Telco, T&E Stores, and Ralph Operating by the Court in the Underlying Action and
Liberty Mutual was unaware of that fact. (JSUF ¶¶ 75–76, 94–95). Liberty Mutual received this
tender on October 7, 2019, (JSUF ¶ 87), and on November 1, 2019, Liberty Mutual disclaimed
coverage and denied any duty to defend or indemnify the Underlying Defendants in the
Underlying Action. (JSUF ¶ 82).
V. Procedural History

On May 27, 2020, Samsung commenced this declaratory judgment action in the Supreme
Court of New York, New York County (Index No. 652009/2020), seeking (1) a declaration that
Liberty Mutual has a duty to defend and indemnify the Underlying Defendants as insureds under
the Liberty Mutual Policy on a primary and non-contributory basis; and (2) reimbursement of the
attorneys’ fees and costs incurred by Samsung in defending the Underlying Defendants in the
Underlying Action. (Compl.). Liberty Mutual timely removed this action to this Court. (Notice
of Removal [ECF No. 1]).
The parties have completed discovery [ECF No. 33] and now cross move for summary
judgment. [ECF No. 34]; [ECF No. 39]. The parties submitted a joint local rule 56.1 statement
of undisputed facts. (See JSUF). In support of its motion, Liberty Mutual filed the Declaration

of Michael Kirby, a Senior Tech Claims Specialist, with several exhibits, (Kirby Decl. [ECF No.
35]), the Declaration of Marshall T. Potashner, counsel for Liberty Mutual, with several exhibits,
(Potashner Decl. [ECF No. 37]), and a memorandum of law, (Def. Br. [ECF No. 36]). In support
of its motion, Samsung filed the Declaration of John D. McKenna, counsel for Samsung, with
several exhibits, (McKenna Decl. [ECF No. 40]), and a memorandum of law, (Pl. Br. [ECF No.
41]). In opposition to Liberty Mutual’s Motion, Samsung filed a supplemental Declaration of
John D. McKenna, (Supp. McKenna Decl. [ECF No. 44]), and a memorandum of law, (Pl.
Opp’n [ECF No. 43]). In opposition to Samsung’s Motion, Liberty Mutual filed a memorandum
of law, (Def. Opp’n [ECF No. 45]). Neither side filed reply briefs.
LEGAL STANDARD
A party is entitled to summary judgment when there is no “genuine dispute as to any
material fact” and the undisputed facts warrant judgment for the moving party as a matter of law.
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The

moving party has the initial burden of demonstrating the absence of a disputed issue of material
fact. Celotex v. Catrett, 477 U.S. 317, 322–23 (1986). Once the motion for summary judgment
is properly made, the burden shifts to the non-moving party, which “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250. The Court must view
the record “in the light most favorable to the opposing party,” Tolan v. Cotton, 572 U.S. 650, 657
(2014) (citation omitted), and must “resolve all ambiguities and draw all reasonable inferences
against the movant,” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013)
(citation omitted).
However, a party “may not rely on mere speculation or conjecture as to the true nature of
the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d

Cir. 2010) (citation omitted). Rather, to survive a summary judgment motion, the opposing party
must establish a genuine issue of fact by “citing to particular parts of materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The
non-moving party must demonstrate more than “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
non-moving party “cannot defeat the motion by relying on the allegations in [its] pleading, or on
conclusory statements, or on mere assertions that affidavits supporting the motion are not
credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citation omitted).
“Mere conjecture or surmise by the nonmovant in support of his or her case is inadequate.”

UMB Bank, N.A. v. Bluestone Coke, LLC, No. 20-CV-2043 (LJL), 2020 WL 6712307, at *3
(S.D.N.Y. Nov. 16, 2020) (quoting Am. Home Assurance Co. v. Jamaica, 418 F. Supp. 2d 537,
546 (S.D.N.Y. 2006)).
DISCUSSION
To establish that Liberty Mutual is liable under the terms of the Liberty Mutual Policy,

Samsung must establish on the undisputed record that the Underlying Defendants qualify as
insureds under the Liberty Mutual Policy and that the underlying claim “result[ed] from the
ownership, maintenance or use of a covered ‘auto.’” (See JSUF ¶ 4). Samsung is unable to
establish either. Moreover, Samsung’s claim for contribution is precluded because the Samsung
Policy and the Liberty Mutual Policy insure different risks.
I. The Underlying Defendants Are Not
Insureds Under The Liberty Mutual Policy
Samsung argues that the Underlying Defendants qualify as insureds under paragraph 1.c
of the “Who Is An Insured” provision of the Liberty Mutual Policy. (Pl. Br. 13). That section
provides that an insured includes “[a]nyone liable for the conduct of an ‘insured’ described [in
paragraph 1.a. or 1.b.] but only to the extent of that liability.” (JSUF ¶ 5). However, as
Samsung concedes (see Pl. Br. 13; Pl. Opp’n 13), this language limits insured status to where the
putative insured is being sued vicariously for the conduct of a named insured or permissive user.
See Certain Underwriters at Lloyds of London v. Illinois Nat’l Ins. Co., No. 09-CV-4418 (LAP),
2017 WL 4326056, at *6 (S.D.N.Y. Aug. 31, 2017) (underlying defendants not covered under

similar provision where “the underlying complaints d[id] not assert claims for vicarious liability
against” them); Paul M. Maint., Inc. v. Transcon. Ins. Co., 300 A.D.2d 209, 211, 755 N.Y.S.2d
3, 5 (1st Dep’t 2002) (holding, under the same provision, that a general contractor was an insured
based on a judicial determination that under the Labor Law the general contractor was
vicariously liable for the subcontractor’s conduct which caused the plaintiff employee’s injuries);
Zurich American Ins. Co. v. Port Authority of New York and New Jersey, No. 657165/2017, 2019
WL 5456444, at *12 (N.Y. Sup. Ct. Oct. 24, 2019) (holding that the Court cannot “cannot make
any determination at this time under the policy concerning the [] Defendants’ liability ‘for the
conduct of the insured’” where there has been no “finding in the underlying actions with respect

to the insured’s liability or the Port Defendants’ vicarious liability”).
It is undisputed that there was no claim for vicarious liability in the Underlying Action.
(JSUF ¶ 32). The conduct at issue in the Underlying Action was the negligent maintenance of
the loading dock area by the Underlying Defendants. (JSUF ¶¶ 28–29, 32, 34, 35, 36, 46, 48–50,
56–57, 60–62, 65, 88).
Samsung seems to argue that the Underlying Defendants were vicariously liable for the
conduct of UPS because Darretta’s injury arose out of the use of a UPS truck. (See Pl. Br. 13; Pl.
Opp’n 13). However, as discussed below, Darretta’s injury did not arise out of the use of a UPS
truck. See Part II infra. Moreover, Darretta never sued UPS and it is undisputed that there was
no claim for vicarious liability in the Underlying Action. (JSUF ¶ 32). Samsung argues that

Darretta could not sue UPS under New York Worker’s Compensation Law. (Pl. Opp’n 16).
That is a red herring. The record is clear that Darretta’s underlying claim was premised on
premises liability, not on any conduct of UPS. (JSUF ¶ 48).
It also appears that Samsung may be arguing that the Underlying Defendants qualified as
insureds as permissive users of the UPS truck because they were unloading the UPS truck. (See
Pl. Opp’n 12 (“[The Underlying Defendants] qualify as insureds with respect to Darretta’s claims
because they were receiving a delivery of packages from the UPS truck at the time of the alleged
accident.”). However, Samsung already conceded in its pre-motion letter that “it was not alleged
in the Underlying Action — and Samsung does not allege here — that the Underlying

Defendants were unloading the truck — rather, they were liable for conduct of an insured
(Darretta) while he was in the process of unloading the vehicle.” [ECF No. 30, at 2]. Moreover,
the Liberty Mutual Policy specifically states that “Who is An Insured does not include anyone
loading or unloading a covered ‘auto’ except you, your ‘employees’, a lessee or borrower or any
of their ‘employees.’” (JSUF ¶ 6). As such, the Underlying Defendants, none of whom were

employees, lessees, borrowers or employees of lessees or borrowers of UPS, would not qualify
as insureds under the Liberty Mutual Policy, even if they had been unloading the UPS truck.
The undisputed record clearly establishes that the Underlying Defendants do not qualify
as insureds under the Liberty Mutual Policy. Therefore, Liberty Mutual is entitled to summary
judgment declaring that it is not obligated to defend or indemnify the Underlying Defendants and
does not owe reimbursement of attorney’s fees to Samsung.
II. The Claim Does Not Arise Under An Auto Policy
The insuring agreement of the Liberty Mutual Policy extends potential coverage only to
claims for bodily injury “caused by an ‘accident’ and resulting from the ownership, maintenance
or use of a covered ‘auto.’” (JSUF ¶ 4). Samsung contends, both in support of its Motion for

Summary Judgment and in opposition to Liberty Mutual’s Motion, that the claim in the
Underlying Action is covered under this policy because Darretta was injured while he was
unloading packages from his UPS truck. (Pl. Br. 10; Pl. Opp’n 9–10).
Liability under an auto policy can be triggered where the relevant accident occurs during
the loading or unloading of property from a covered vehicle. See Eagle Ins. Co. v. Butts, 269
A.D.2d 558, 559, 707 N.Y.S.2d 115 (2d Dep’t 2000). However, New York courts have
consistently held that a plaintiff cannot establish liability by merely demonstrating that an
incident occurred during the unloading period. Rather, the plaintiff must demonstrate that the
accident resulted from “some act or omission related to the use of the vehicle.” Id.; see also Elite

Ambulette Corp. v. All City Ins. Co., 293 A.D.2d 643, 644–645, 740 N.Y.S.2d 442 (2d Dep’t
2002) (upholding the trial court ruling that the auto insurance company was not obligated to
defend or indemnify because “the accident was not the result of an act or omission related to the
use of the vehicle”); ABC, Inc. v. Countrywide Ins. Co., 308 A.D.2d 309, 310, 764 N.Y.S.2d 244
(1st Dep’t 2003) (“[T]here still must be a demonstration that the injury [during the loading or

unloading of the vehicle] resulted from ‘some act or omission related to the use of the
vehicle.’”). “Simply sustaining an injury during the unloading process, without any showing of
negligent use of the truck, does not invoke liability coverage under the vehicle insurance policy.”
ABC, Inc., 308 A.D.2d at 310; see also Progressive Cas. Ins. Co. v. Yodice, 180 Misc. 2d 863,
866, 694 N.Y.S.2d 281, 283 (N.Y. Sup. Ct. 1999), aff’d, 276 A.D.2d 540, 714 N.Y.S.2d 715 (2d
Dep’t 2000) (“Not every accident involving an automobile concerns the use or operation of that
vehicle. The accident must be connected with the use of the automobile qua automobile. The
use of the automobile as an automobile must be the proximate cause of the injury.”); United
Servs. Auto. Ass’n v. Aetna Cas. & Sur. Co., 75 A.D.2d 1022, 1022, 429 N.Y.S.2d 508 (4th
Dep’t 1980) (“Where the operation or driving function of an automobile or the condition of the

vehicle itself is not the proximate cause of the injury, the occurrence does not arise out of its use
or operation.”).
Here, the parties agree that the Underlying Action was for premises liability. (JSUF
¶¶ 29, 48). There is no dispute that there was no claim in the Underlying Action that any injury
was related to the negligent use or maintenance of the UPS truck. (JSUF ¶¶ 63, 64, 90).
Samsung contends that “where an accident results from an act of loading or unloading of
a covered auto, the claim comes within the scope of the auto liability coverage as long as there is
a causal connection between the accident and the movement of goods to or from the vehicle. (Pl.
Br. 10–11; see also Pl. Opp’n 10). However, this argument ignores that the cases Samsung cites

to limit this principle to circumstance where the underlying accident is “the result of some act or
omission related to the use of the vehicle. Eagle Ins., 269 A.D.2d at 559; see also Wausau
Underwriters Ins. Co. v. St. Barnabas Hosp., 145 A.D.2d 314, 315, 534 N.Y.S.2d 982, 983 (1st
Dep’t 1988) (“Where coverage is provided for use and operation of a vehicle, to invoke even an
insurer’s duty to defend, the ‘use of the motor vehicle must be the proximate cause of the

injury.’” (quoting Lumbermen’s Mut. Cas. Co. v. Logan, 88 A.D.2d 971, 971, 451 N.Y.S.2d 804,
805 (2d Dep’t 1982)).
As such, the undisputed record clearly establishes that the claim here is not covered under
the Liberty Mutual Policy and that Liberty Mutual is entitled to summary judgment.
III. Samsung Does Not Have A Valid Claim For Contribution
An insurer who pays a claim does not have a right for recovery against another insurer if
the two insurers do not insure the same insured against the same risk. See Nat’l Cas. Co. v. Am.
Safety Cas. Ins. Co., No. 10 CIV 2820 JSR, 2010 WL 4968077, at *2 (S.D.N.Y. Dec. 3, 2010)
(“An action for contribution is available only upon a showing that two or more insurers cover the
same insured for the same risk.”); Pennsylvania Mfrs. Ass’n Ins. Co. v. Liberty Mut. Ins. Co., 39

A.D.3d 1161, 1162, 837 N.Y.S.2d 445 (4th Dep’t 2007) (dismissing complaint where the
policies of the plaintiff and defendant “did not insure the same risk.”). Two policies do not
insure the “same risk” where the policies are not “triggered by the same underlying lawsuit.”
Nat’l Cas. Co. v. Vigilant Ins. Co., 466 F. Supp. 2d 533, 541 (S.D.N.Y. 2006).
The insurance policies here also do not insure the same risk. The Liberty Mutual Policy
is a commercial auto policy. (JSUF ¶ 1). It is true that the Samsung Policy includes both a
Commercial Auto and a General Liability Coverage Part. But the Underlying claim was handled
under the General Liability Coverage Part of the Samsung Policy, which excluded coverage for
auto-related losses. (JSUF ¶¶ 16, 18, 54, 55).
Samsung argues that the underlying lawsuit was for an injury arising out of the
ownership, maintenance or use of an auto and that therefore, the Liberty Mutual Policy is the
primary policy to afford coverage to the Underlying Defendants. (Pl. Opp’n 17—20). However,
as set forth above, that is simply not the case. See Part I, II supra. Moreover, it is undisputed
that the claim in the Underlying Action was handled under the General Liability Coverage Part
of the Samsung Policy, which excluded coverage for auto-related losses. (JSUF 9] 16, 18, 54,
55). Samsung did not cover the claim under its Commercial Auto — Business Auto Coverage
Part. (See JSUF 9, 16). As such, the undisputed record establishes that the policies at issue
did not insure the same risks. Liberty Mutual is entitled to summary judgment on this
independent ground.
CONCLUSION
The undisputed record establishes that Defendant Liberty Mutual is not liable for the
conduct of the Underlying Defendants in the Underlying Action. As such, Liberty Mutual’s
Motion for Summary Judgment is GRANTED and Samsung’s Motion for Summary Judgment is
DENIED. Samsung’s request for oral argument is DENIED.
The Clerk of Court is respectfully requested to close docket entries 34 and 39 and close
this case.

SO ORDERED. | / ky
Date: February 28, 2022 Ta He Vag
New York, NY nited States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10339030. Public record. Not legal advice.