The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UTICA MUTUAL INSURANCE COMPANY
and UTICA NATIONAL INSURANCE OF
TEXAS, 6:24-cv-1300
(ECC/ML)
Plaintiffs,
v.
NATIONAL FIRE INSURANCE COMPANY
OF HARTFORD and THE CONTINENTAL
INSURANCE COMPANY,
Defendants.
Syed Ahmad, Esq., for Plaintiffs
Laura B. Dowgin, Esq., for Defendants
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiffs Utica Mutual Insurance Company and Utica National Insurance of Texas
(together, Utica) bring this diversity action against Defendants National Fire Insurance Company
of Hartford (National Fire) and the Continental Insurance Company (Continental, and together
with National Fire, CNA) alleging claims related to an insurance coverage dispute. Presently
before the Court is CNA’s motion to dismiss the Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) or, in the alternative, for a stay. Dkt. No. 54; see infra Section I.A. The
motion is fully briefed. See Dkt. Nos. 70, 78, 109, 110. For the following reasons, CNA’s motion
to dismiss is granted.
I. BACKGROUND
A. Relevant Procedural History
Utica commenced this action by filing its complaint on October 23, 2024. Dkt. No. 1. On
November 21, 2025, CNA moved for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) or, in the alternative, for a stay of this action. Dkt. No. 54. That same day, Utica
moved for leave to file an amended complaint. Dkt. No. 58. Magistrate Judge Miroslav Lovric
granted Utica’s motion to amend on February 27, 2026, and Utica filed the Amended Complaint
on March 3, 2026. Dkt. Nos. 94, 96.
Because the “only substantive change made in the Amended Complaint is the addition of
a bad faith claim” and the “factual allegations and legal theories underlying CNA’s Rule 12(c)
motion are unchanged,” CNA requested that its Rule 12(c) motion be “decided on its existing
briefing.” Dkt. No. 99. The Court accordingly converted CNA’s Rule 12(c) motion for judgment
on the pleadings to a Rule 12(b)(6) motion to dismiss the Amended Complaint for failure to state
a claim. TEXT Minute Entry dated May 18, 2026.
B. The Amended Complaint1
1. The New Country-Enviro Contract
Utica’s insured, New Country Motor Cars of Naples, LLC (New Country), entered into a
contract with EnviroStruct, LLC (Enviro) in 2019 under which Enviro would build a car dealership
for New Country in Naples, Florida. Dkt. No. 96 ¶ 12; Dkt. No. 96-2. This contract provided:
To the fullest extent permitted by law, [Enviro] shall cause the
commercial general liability coverage to include (1) the Owner
[New Country], the Architect, and the Architect’s consultants as
additional insureds for claims caused in whole or in part by
1 These facts are drawn from the Amended Complaint and the exhibits attached thereto. The Court
assumes the truth of, and draws reasonable inferences from, the well-pleaded factual allegations,
see Lynch v. City of New York, 952 F.3d 67, 74-75 (2d Cir. 2020), but does not accept as true any
legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[Enviro’s] negligent acts or omissions during [Enviro’s] operations;
and (2) the Owner [New Country] as an additional insured for claims
caused in whole or in part by [Enviro’s] negligent acts or omissions
for which loss occurs during completed operations.
Dkt. No. 96-2 at 14.2 Such additional insured coverage was required to be “primary and non-
contributory.” Id.
2. The Roland Complaint
On February 21, 2023, the “Roland plaintiffs” sued New Country, Enviro, and other
defendants in Florida state court for injuries suffered by Brian Roland on December 4, 2021 “while
using a car lift during the grand opening of the dealership Enviro built for New Country.” Dkt. No.
96 ¶ 14; Dkt. No. 96-1 (the Roland complaint). The Roland complaint alleges that Mr. Roland fell
from the second floor of the dealership “through a 22-inch gap which existed between the end of
the car lift platform and the wall,” after which he was pinned and crushed by the car lift. Dkt. No.
96-1 ¶¶ 22-25.
The Roland complaint alleges that New Country was negligent by, among other things,
failing to warn Mr. Roland “that a twenty-two (22) inch gap existed between the edge of the car
lift platform and the wall when the car lift was located on the second floor,” “[f]ailing to provide
adequate guardrails and other fall prevention equipment to protect [Mr. Roland] from falling from
the second floor,” “[f]ailing to ensure warning signs were on the lift to instruct people that riders
were not allowed on the lift,” and “[f]ailing to ensure that warning labels were attached to the car
lift.” Id. at ¶ 59(e)-(g), (i). The Roland complaint likewise alleges that Enviro, the “general
contractor” on the dealership project, was negligent in the same four ways (among others). Id. at
¶¶ 76, 80(c)-(e), (i).
2 Unless otherwise noted, citations to page numbers refer to the pagination generated by the
CM/ECF system.
3. The CNA Insurance Policies Issued to Enviro
National Fire issued a primary general liability policy to Enviro which was in effect on the
date of Mr. Roland’s accident (the Policy). Dkt. No. 96 ¶ 25; Dkt. No. 96-3. The Policy contains
a “Blanket Additional Insured” endorsement which includes as an insured under the Policy:
any person or organization whom you are required by written
contract to add as an additional insured on this coverage part, but
only with respect to liability for bodily injury, property damage or
personal and advertising injury caused in whole or in part by your
acts or omissions, or the acts or omissions of those acting on your
behalf:
A. in the performance of your ongoing operations subject to
such written contract; or
B. in the performance of your work subject to such written
contract, but only with respect to bodily injury or property
damage included in the products-completed operations
hazard, and only if:
1. the written contract requires you to provide the
additional insured such coverage; and
2. this coverage part provides such coverage.
Dkt. No. 96-3 at 106, § 1.3 However, if the written contract requires, among other things,
“additional insured coverage to the greatest extent permissible by law,” then Section 2 of the
endorsement applies and the policy includes as an insured “any person or organization whom you
are required by written contract to add as an additional insured on this coverage part, but only with
respect to liability for bodily injury, property damage or personal and advertising injury arising
out of your work that is subject to such written contract.” Id. § 2.
3 All bold formatting of defined terms in the insurance policies has been omitted.
Section 3 of the additional insured endorsement provides: “Subject always to the terms and
conditions of this policy, including the limits of insurance, the Insurer will not provide such
additional insured with: A. coverage broader than required by the written contract.” Id. § 3.
Continental issued an excess liability policy to Enviro which provides additional coverage
“in conformance with” the Policy except for the premium, insurance limits, and other matters not
relevant here. See Dkt. No. 96 ¶¶ 32-34; Dkt. No. 96-4. The parties agree that whether New
Country is entitled to any coverage under the excess policy depends on whether it is entitled to any
coverage under the Policy.
4. The Roland Lawsuit & Settlement
CNA “refus[ed] to defend and indemnify New Country” in the Roland lawsuit. Dkt. No.
96 ¶ 40. Utica, who issued primary and umbrella policies to New Country, “agreed to defend New
Country” and therefore paid “amounts like attorneys’ fees.” Id. at ¶¶ 41-43. Utica paid to settle the
Roland lawsuit on New Country’s behalf in November 2024. Id. at ¶ 47. Under the terms of Utica’s
policies, New Country’s rights to recover damages from CNA were transferred to Utica, who now
acts as assignee and subrogee of New Country’s rights. Id. at ¶¶ 44-45.
Utica further alleges that CNA acted in bad faith because its determination that it had no
duty to defend New Country was “based on facts outside the [Roland] complaint,” in contravention
of settled insurance law. Id. at ¶¶ 48-51. Utica alleges that CNA “reversed course and
acknowledged that it had a duty to defend New Country” in October 2025. Id. at ¶ 52.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint
must provide ‘enough facts to state a claim to relief that is plausible on its face.’” Mayor & City
Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to
raise a right to relief above the speculative level[.]” Id. (quoting Twombly, 550 U.S. at 555). A
court must accept as true all factual allegations in the complaint and draw all reasonable inferences
in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION
The Amended Complaint asserts three causes of action against CNA for: (1) breach of
contract by failing to defend and indemnify New Country in the Roland lawsuit; (2) a declaratory
judgment that CNA had a duty to defend and indemnify New Country under the CNA policies in
the Roland lawsuit; and (3) breach of the duty of good faith. Dkt. No. 96 ¶¶ 62-80. CNA moves to
dismiss the Amended Complaint on the ground CNA had no duty to defend or indemnify New
Country under the policies as a matter of law.
A. Choice of Law
As an initial matter, the Court must determine which law governs the interpretation of the
Policy, which does not contain a choice-of-law provision. CNA argues that Florida law governs
the Policy under New York’s choice-of-law analysis. Dkt. No. 54-1 at 8-10. Utica argues that
“New York and Florida law are consistent” on the relevant issues and therefore that no choice-of-
law analysis is necessary. Dkt. No. 70 at 13 n.3.
“A federal court sitting in diversity applies the choice-of-law rules of the forum state.”
Kinsey v. N.Y. Times Co., 991 F.3d 171, 176 (2d Cir. 2021) (citation omitted). Under New York’s
choice-of-law rules, the “first step in any choice of law inquiry is to determine whether there is an
‘actual conflict’ between the rules of the relevant jurisdictions.” Id. (citation and internal quotation
marks omitted). Here, as discussed further below, infra Section III.C, there is an actual conflict
between New York and Florida law relative to interpreting the insurance contract language at issue.
See Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313, 317 (2017) (holding that coverage
for liability for bodily injury “caused, in whole or in part,” by the “acts or omissions” of the named
insured applies “to injury proximately caused by the named insured”); Garcia v. Fed. Ins. Co., 969
So. 2d 288 (Fla. 2007) (holding that coverage with respect to “liability because of acts or omissions
of the insured” limited coverage to vicarious liability).
New York utilizes the “‘center of gravity’ or ‘grouping of contracts’ as the appropriate
analytical approach to choice of law questions in contract cases.” Matter of Midland Ins. Co., 16
N.Y.3d 536, 543 (2011) (citations omitted). The purpose of this approach is to establish which
State has “the most significant relationship to the transaction and the parties.” Id. at 543-44
(citation omitted). In the context of liability insurance contracts, the jurisdiction with the “most
‘significant relationship’” will “generally be the jurisdiction ‘which the parties understood was to
be the principal location of the insured risk unless with respect to the particular issue, some other
jurisdiction has a more significant relationship.’” Id. at 544 (citation, ellipses, and brackets
omitted).
Here, as CNA points out, the Policy was issued via a Florida insurance broker to Enviro, a
Florida company with its principal place of business in Florida. See, e.g., Dkt. No. 96-3 at 3. The
state-specific policy forms all concern Florida. E.g., id. at 6-9, 13, 19-20. Further, the New
Country-Enviro contract concerned the construction of a dealership in Florida, and Mr. Roland’s
accident occurred in Florida. See generally Dkt. Nos. 96-1, 96-2. Although Utica states that it
“disagrees” that Florida law applies, Dkt. No. 70 at 13 n.3, it provides no reason why Florida is
not the State with the most significant relationship to the transaction and parties here. Accordingly,
the Court concludes that Florida law governs the interpretation of the Policy.
Under Florida law, the interpretation of an insurance policy “is a question of law.” Gov’t
Emps. Ins. Co. v. Macedo, 228 So. 3d 1111, 1113 (Fla. 2017) (citation omitted). Insurance
contracts are construed “according to their plain language.” Id. (citation omitted). “[A]ny
ambiguity which remains after reading each policy as a whole and endeavoring to give each
provision its full meaning and operative effect must be liberally construed in favor of coverage
and strictly against the insurer.” Id. (citation omitted).
B. “Arising out of” versus “Caused in Whole or in Part by” Standard
Although the parties agree that the contract between New Country and Enviro requires
Enviro to add New Country as an additional insured, the parties dispute which section of the
Policy’s blanket additional insured endorsement applies to define the scope of additional insured
coverage. As set forth above, the endorsement has three relevant provisions:
• Section I, the default provision which provides additional insured coverage “with
respect to liability . . . caused in whole or in part by [Enviro’s] acts or omissions,”
Dkt. No. 96-3 at 106, § I (emphasis added);
• Section II, which provides additional insured coverage “with respect to liability . . .
arising out of [Enviro’s] work” when the written contract requires “additional
insured coverage to the greatest extent permissible by law,” id. at 106, § II
(emphasis added); and
• Section III, which provides that the additional insured will not be provided with
“coverage broader than required by the written contract,” id. at 106, § III.
CNA argues that Section I’s “caused in whole or in part by” standard applies in this
situation but that, in any event, Section III limits coverage to what is required under the New
Country-Enviro contract, which is coverage for “claims caused in whole or in part by [Enviro’s]
negligent acts or omissions.” See Dkt. No. 78 at 8 n.1; Dkt. No. 54-1 at 10-11; Dkt. No. 96-2 at
14. Utica argues that Section II’s “arising out of” standard is triggered because the New Country-
Enviro contract requires additional insured coverage to the “fullest extent permitted by law.” Dkt.
No. 70 at 13-16.
By its plain language, the New Country-Enviro contract does not require “additional
insured coverage to the greatest extent permissible by law.” Rather, the contract provides: “To the
fullest extent permitted by law, [Enviro] shall cause the commercial general liability coverage to
include . . . [New Country] as an additional insured for claims caused in whole or in part by
[Enviro’s] negligent acts or omissions . . . .” Dkt. No. 96-2 at 14, § A.3.1.3. The introductory
phrase “[t]o the fullest extent permitted by law” modifies the requirement that New Country be
included as an additional insured “for claims caused in whole or in part” by Enviro’s negligence
but is not a standalone requirement sufficient to trigger Section II of the endorsement and its
“arising out of” standard. Thus, whether by virtue of Section I’s default provision or by applying
the language of the New Country-Enviro contract via Section III’s limitation, additional insured
coverage only exists for New Country with respect to liability “caused in whole or in part by”
Enviro’s conduct.4
Utica advances two additional arguments why the “caused in whole or in part by” standard
should not apply, but neither is convincing. First, Utica argues that application of Section II’s
“arising out of” standard would not violate Section III because the New Country-Enviro contract
generally requires that New Country be added as an additional insured, without limitation, and
requires that Enviro provide certificates of insurance. Dkt. No. 70 at 16. But the contract requires
the parties to “purchase and maintain insurance” only as set forth in a separate exhibit, Dkt. No.
4 Utica argues that insuring “claims” caused in whole or in part by Enviro’s conduct is “notably
broader” than insuring “liability” for the same. Dkt. No. 70 at 17-18. However, the Policy insures
“liability,” and Utica has not explained how the New Country-Enviro contract’s use of the word
“claims” could operate to expand the scope of the Policy’s coverage. Nor has Utica explained the
practical difference between “claims” and “liability” in this particular situation, where Utica has
already paid to settle the Roland lawsuit on behalf of New Country.
96-2 at 8, § 8.5.1, and the provision regarding certificates of insurance is a requirement to provide
proof of insurance, not a separate obligation to provide coverage, id. at 14 § A.3.1.1.
Second, Utica argues that the word “include” in the sentence “To the fullest extent
permitted by law, [Enviro] shall cause the commercial general liability coverage to include . . .
[New Country] as an additional insured . . .” creates a “floor” of coverage, not a “ceiling.” Dkt.
No. 70 at 16-17. The Court agrees with CNA that the word “include” here is not being used to
introduce “exemplary, non-limiting material.” Dkt. No. 78 at 9. Rather, the word signifies that
New Country must be “included” as an additional insured for the specified scope of coverage.
In sum, whether under Section I of the Policy’s additional insured endorsement or whether
under Section III and the New Country-Enviro contract’s language, New Country is an additional
insured under the policy with respect to liability “caused in whole or in part by” Enviro’s conduct.
C. Whether “Caused in Whole or in Part by” Requires Vicarious Liability
The parties next dispute whether the “caused in whole or in part by” standard limits
additional insured coverage only to situations where the additional insured is held vicariously
liable for the named insured’s negligence. CNA argues that under Florida law the answer is yes,
relying on Garcia v. Federal Insurance Company, 969 So. 2d 288 (Fla. 2007). Dkt. No. 54-1 at
11-13. Utica argues that the answer is no, because (1) the plain language of the standard does not
require vicarious liability, (2) Garcia interpreted materially different language, and (3) other
Florida state-court cases have rejected CNA’s argument. Dkt. No. 70 at 18-26.5
5 Utica also argues that the “caused in whole or in part” standard does not require vicarious liability
under New York law. Dkt. No. 70 at 19 (citing Burlington, 29 N.Y.3d at 324-25). As set forth in
this decision, however, the Court concludes that Florida law conflicts with New York law in this
regard and that Florida law applies to the interpretation of the Policy.
1. Garcia and its progeny
In Garcia, the Supreme Court of Florida considered “whether a clause covering ‘any other
person with respect to liability because of acts or omissions’ of the named insured covers only
vicarious liability for the negligence of the named insured.” 969 So. 2d at 291 (emphasis added).
Relying on the unambiguous plain language of this provision, the court concluded that the words
“clearly indicate” that an additional insured is only entitled to coverage with respect to “liability
that is caused by or occurs by reason of” the named insured’s acts or omissions, i.e., vicarious
liability. Id. at 291-92, 294; see id. at 293 (“[T]he presence of the words ‘because of’ . . . requires
that an additional insured’s liability be ‘caused by’ the acts or omissions of the named insured.”).6
Therefore, because the individual seeking additional insured coverage in that case was sued “for
her own negligence” and it was not alleged that she was liable for the named insured’s acts or
omissions, she was not entitled to coverage. Id. at 292.
“Federal district courts applying Florida law to additional-insured endorsements such as
the ones in this case [which cover liability “caused, in whole or in part, by” the named insured]
have consistently ruled in line with Garcia,” finding that such endorsements “did not extend
coverage where the underlying lawsuit did not allege that the additional insured was vicariously
liable for the direct negligence of the named insured.” Tokio Marine Specialty Ins. Co. v. Clear
Blue Specialty Ins. Co., 812 F. Supp. 3d 1271, 1280 (S.D. Fla. 2025) (collecting cases); see also
Old Republic Gen. Ins. Corp. v. Liberty Ins. Corp., No. 21-cv-23825, 2022 WL 1203007, at *2
(S.D. Fla. Apr. 22, 2022) (noting that courts have found no additional insured coverage where the
additional insured was sued for its own negligence and not the named insured’s negligence, even
6 The Garcia court also specifically noted that “arising out of” language is “broader” than the
“because of” language it interpreted. Id. at 293.
with the addition of the phrase “in whole or in part”). In Cincinnati Specialty Underwriters
Insurance Co. v. KNS Group, LLC, for example, the Eleventh Circuit considered an additional
insured endorsement that limited coverage to certain types of injury or damage “caused, in whole
or in part, by” the named insured’s negligence. No. 21-13628, 2022 WL 5238711, at *1 (11th Cir.
Oct. 6, 2022) (per curiam). The Eleventh Circuit interpreted this provision consistent with Garcia
to cover the additional insured “only for damages that [the named insured or its agents] completely
or partially caused.” Id. at *3. The court further rejected the argument that the term “in part by”
required a different interpretation, explaining that the term “caused in part by” means “that even
if the complaint alleged [the named insured] was only 1% responsible for causing the faulty
workmanship,” the insurer would have a duty to defend the additional insured. Id.
As another example, a district court similarly considered an additional insured endorsement
extending coverage to liability “caused in whole or in part” by the named insured in Robert L.
Strauss, P.A. v. Gemini Insurance Company, 742 F. Supp. 3d 1184 (S.D. Fla. 2024). Following
Garcia and Cincinnati, the court concluded that the endorsement “limit[ed] coverage to instances
where an additional insured is being held vicariously liable for the acts or omissions of the named
insured.” Id. at 1200 (noting that the “caused in whole or in part” by language was “even more
narrow than the policy language in Garcia” because it “jumps the ‘because of’ hurdle and directly
states that coverage only extends when the liability is ‘caused,’ ‘in whole or in part,’ by [the named
insured’s] negligence”). Because the additional insured was only sued for its own direct
negligence, and not any vicarious liability for the named insured’s negligence, it was not covered
by the policy. Id. at 1201.
Utica argues that Garcia interpreted “materially different language” and did not address
liability “caused in whole or in part by,” and more generally argues that the term “in part” is
incompatible with a vicarious liability requirement. Dkt. No. 70 at 18, 22-23. It is true that
vicarious liability is liability “based solely on the legal imputation of responsibility for another
party’s tortious acts.” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459,
468 (Fla. 2005). But the fact that a party might be vicariously liable for another party’s negligence
does not mean that the negligent party must be 100% at fault; rather, the “vicariously liable party
is liable only for the amount of liability apportioned to the tortfeasor.” Id. Thus, it is possible that
Enviro could cause an injury “in part” and that another party, such as New Country, could be held
vicariously liable. The use of the term “in part” is not necessarily incompatible with vicarious
liability. See also Old Republic Gen. Ins. Corp., 2022 WL 1203007, at *2 (“At a minimum, for
additional insured coverage, the additional insured’s liability must be at least partially the result
of its vicarious liability for the insured’s negligence.”).
Accordingly, based on Garcia and the other cited authority, the Court concludes that
coverage for liability “caused in whole or in part by” Enviro’s acts or omissions requires that Utica
be vicariously liable for Enviro’s conduct.
2. Florida state court cases
Under its theory that Garcia interpreted materially different language and does not govern
the outcome here, Utica cites three Florida state court cases as “indicator[s] of how the Florida
Supreme Court would rule” with respect to “caused in whole or in part” language. Dkt. No. 70 at
21-24. These cases are distinguishable and/or do not account for the holding in Garcia.
Utica first cites Mid-Continent Casualty Co. v. Royal Crane, LLC, 169 So. 3d 174 (Fla. 4th
Dist. Ct. App. 2015). There, the Florida Fourth District Court of Appeal considered whether an
indemnification clause qualified as an “insurance contract” under the insurance policy at issue,
which defined “insurance contract” as an agreement to “assume the tort liability of another party
. . . provided the ‘bodily injury’ or ‘property’ damage is caused, in whole or in part,” by the named
insured. Id. at 182. The court held that this definition should not “be construed so narrowly” as to
require vicarious liability and was satisfied “where the injury is caused by the indemnitee’s
negligence, so long as the named insured ‘caused’ some part of the injuries or damages or is
otherwise vicariously liable.” Id. at 183. However, Royal Crane interprets the definition of
“insured contract,” not the scope of coverage under an additional insured endorsement, and does
not mention or address the holding in Garcia. See Amerisure Ins. Co. v. Seneca Specialty Ins. Co.,
No. 20-cv-20442, 2020 WL 3317035, at *8 (S.D. Fla. June 18, 2020) (finding Royal Crane
“inapposite” because it “openly appl[ied] a ‘relaxed standard,’” “did not address the Florida
Supreme Court’s ruling in Garcia,” and “did not involve an additional insured endorsement”).
Utica next cites Zep Construction, Inc. v. Interstate Fire & Casualty Company, 18 Fla. L.
Weekly Supp. 65a (Fla. 12th Cir. 2010), which concluded that the phrase “in whole or in part”
granted the additional insured coverage “so long as there is any fault on the part of” the named
insured. Dkt. No. 70-3 at 8. To support this conclusion, however, the court cites cases applying
Texas and Alabama law, not Florida law. See id. Nor does the court address Garcia.
Finally, Utica cites Schmid Construction, Inc. v. H&M Builders, LLC, No. 2021-1020-CA-
01, 2023 WL 12023433 (Fla. Cir. Ct. July 24, 2023), which involved additional insurance coverage
for liability “caused in whole or in part[] by” the named insured’s acts or omissions. The court,
relying on Royal Crane, found the endorsement to be ambiguous and therefore construed it in favor
of the party seeking coverage. Id. at *2-3. The court stated in passing that Garcia was “factually
distinguishable,” but does not explain how. Id. at *2.
In sum, the Court concludes that none of the Florida state court cases Utica cites presents
a persuasive or compelling reason to depart from the Florida Supreme Court’s clear holding in
Garcia and the weight of authority that has applied Garcia to the exact language at issue here.
D. Whether the Roland Complaint Alleged Vicarious Liability
Based on the above, New Country is entitled to coverage as an additional insured under the
Policy with respect to the Roland lawsuit only if it could be held vicariously liable for Enviro’s
acts or omissions. Utica argues that CNA’s motion should be denied “even if vicarious liability
[i]s the standard” because Utica alleged that New Country was vicariously liable for Enviro’s
conduct. Dkt. No. 70 at 11-13. Specifically, the Amended Complaint alleges that “[a]ny liability
for bodily injury suffered by New Country arises out of Enviro’s work . . . and would be based on
New Country being vicariously liable for Enviro’s acts or omissions.” Dkt. No. 96 ¶ 20. Utica
argues that this allegation must be accepted as true on CNA’s motion to dismiss. Dkt. No. 70 at
12.
Utica’s argument is unpersuasive for at least three reasons. First, Utica’s allegation that
New Country’s liability in the Roland lawsuit “would be” by virtue of vicarious liability is a legal
conclusion, not an allegation of fact. The Court therefore need not accept it as true. Iqbal, 556 U.S.
at 678. Second, when “documents attached to the complaint as exhibits or incorporated by
reference in the complaint contain statements that contradict the allegations in the complaint, the
documents control and the Court need not accept the allegations as true.” JRS Ltd. v. ACE Am. Ins.
Co., No. 25-cv-730 (MAD/PJE), 2026 WL 832623, at *3 (N.D.N.Y. Mar. 26, 2026) (citation
omitted). Because the Roland complaint is attached to the Amended Complaint as an exhibit, the
Court need not accept Utica’s characterization of the complaint—to the extent it contradicts the
document—as true.
Third, under Florida law vicarious liability must be “specifically pled” in the complaint.
Goldschmidt v. Holman, 571 So. 2d 422, 423-24 (Fla. 1990); see also, e.g., Nguyen v. Perspective
Global, LLC, 387 So. 3d 1265, 1269 (Fla. 2d Dist. Ct. App. 2024) (noting that it is “true generally”
that “vicarious liability must be pleaded as a separate cause of action” in Florida). Utica does not
contest that Florida law requires vicarious liability to be separately pled; nor does Utica contend
that the Roland complaint does so. Although Utica argues that it could show that New Country
“was in fact vicariously liable for Enviro even if the Rolands did not plead vicarious liability
against New Country,” Dkt. No. 70 at 13, Utica does not explain, given Florida’s separate pleading
requirement, how New Country could be held liable on an unpled theory.
Accordingly, under the above analysis, New Country is not entitled to additional insured
coverage under the Policy or excess policy with respect to the Roland lawsuit.
E. Duty to Defend
Although the Court’s conclusion that New Country is not entitled to coverage under the
Policy would ordinarily result in CNA’s motion to dismiss being granted without further analysis,
here the parties dispute whether CNA has previously conceded it owed a duty to defend and the
impact of that concession on this case. See Dkt. Nos. 99, 106. The Court therefore solicited further
briefing from the parties regarding “the impact, if any, of [CNA’s] allegedly inconsistent
representations regarding the duty to defend on the Court’s resolution” of the motion to dismiss,
Dkt. No. 108, and the parties filed sur-replies, Dkt. Nos. 109, 110.
Although the motion presently before the Court is a Rule 12(b)(6) motion to dismiss, this
case was filed in October 2024 and the parties have engaged in some discovery. On October 22,
2025, CNA wrote to Magistrate Judge Lovric requesting a pre-motion conference regarding an
anticipated motion to stay this action pending the trial in the underlying state-court action. See Dkt.
No. 45. In that letter, CNA stated: “CNA’s position is that the only issue that was ripe for
adjudication in this matter, the duty to defend, has now been resolved.” Id.7 At an October 27,
7 CNA’s sur-reply also references an October 8, 2025 “settlement” letter sent to Utica’s counsel in
which CNA stated: “CNA is willing to concede the duty to defend at this time and will agree to
reimburse Utica for New Country’s reasonable post-tender fees and costs.” Dkt. No. 58-6 at 2.
CNA argues that this letter is an inadmissible settlement communication under Federal Rule of
2025 conference with Magistrate Judge Lovric, CNA’s counsel stated: “During the course of this
litigation, CNA has conceded that it owed the duty to defend. We have offered to reimburse all
defense costs incurred. That cause of action is now moot. There is no longer any dispute as to the
duty to defend.” Dkt. No. 60 at 4:18-22. CNA subsequently reversed course and now takes the
position that it does not owe, and never owed, a duty to defend to New Country.8
Utica argues that CNA’s motion should be denied based on CNA’s prior concession of the
duty to defend under the doctrines of judicial estoppel, judicial admission, and waiver. Dkt. No.
109 at 6-8. CNA generally argues in response that none of these three doctrines applies and that
CNA’s concession “cannot conjure coverage that Florida contract law forecloses.” Dkt. No. 110
at 5.9
1. Judicial Estoppel
The purpose of judicial estoppel, an equitable doctrine “invoked by a court at its
discretion,” “is to protect the integrity of the judicial process by prohibiting parties from
deliberately changing positions according to the exigencies of the moment.” Intellivision v.
Microsoft Corp., 484 F. App’x 616, 619 (2d Cir. 2012) (summary order) (quoting New Hampshire
v. Maine, 532 U.S. 742, 749-50 (2001)). Judicial estoppel typically will apply if “1) a party’s later
Evidence 408. The issue, however, is not what CNA said in a settlement letter to Utica, but what
representations CNA made to the Court. Similarly, the issue is not whether CNA in fact owed New
Country a duty to defend as a legal matter, but whether CNA’s prior representations to the Court
bind it in any way.
8 It appears that CNA “change[d] [its] legal position following the discovery of” Garcia and after
Utica rejected CNA’s offer to settle the duty to defend portion of Utica’s action. See Dkt. No. 90
at 1.
9 CNA also argues that Utica’s arguments about the concession rely on extrinsic materials which
may not be considered on a Rule 12(b)(6) motion to dismiss. Dkt. No. 110 at 5-7. However, CNA
has not provided authority or explained why the Court may not consider its docket and prior
proceedings in this matter in considering these equitable doctrines.
position is ‘clearly inconsistent’ with its earlier position; 2) the party’s former position has been
adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two
positions would derive an unfair advantage against the party seeking estoppel.” DeRosa v. Nat’l
Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010) (quoting New Hampshire, 532 U.S. at 750-51).
The doctrine is limited to “situations where the risk of inconsistent results with its impact on
judicial integrity is certain.” Id. (citation omitted).
The Court concludes that application of judicial estoppel is not appropriate in these
circumstances. Although CNA has asserted inconsistent positions before this Court, it is not clear
that Magistrate Judge Lovric “adopted” CNA’s position that it owed no duty to defend in some
way. Magistrate Judge Lovric denied the stay CNA requested and, although he extended the
deadline for filing a dispositive motion, it is not clear that he did so only or primarily because of
CNA’s representations.10 Furthermore, even assuming arguendo that Magistrate Judge Lovric
granted an extension of deadlines based on CNA’s representations, entertaining CNA’s current
position presents no risk of “inconsistent results” that would undermine judicial integrity.
Additionally, the Court cannot conclude that CNA will gain an unfair advantage against
Utica given that CNA’s “reversal” came shortly after its October 2025 representations. CNA filed
the present motion to dismiss—which argues that New County is not an additional insured under
the Policy entitled to defense or indemnification—on November 21, 2025 and well before the
extended dispositive motion deadline in March 2026.11 Although Utica argues that it will be forced
10 It appears that Utica agreed to an extension of the dispositive motion deadline. See Dkt. No. 49
at 1.
11 CNA also filed a letter formally “correct[ing]” its prior statements on February 25, 2026. Dkt.
No. 90.
to “spend additional time and money litigating an issue CNA already conceded,” Dkt. No. 109 at
7, it does not articulate any detrimental reliance it took in October or early November 2025.
Thus, the Court concludes that CNA’s October 2025 representations do not give rise to
judicial estoppel.
2. Judicial Admission
Utica’s argument that CNA’s concession is a binding judicial admission fails for the simple
reason that CNA’s prior representations to the Court, although unequivocal, related to a legal
question and were not admissions of fact. See In re Motors Liquidation Co., 957 F.3d 357, 360 (2d
Cir. 2020) (“To constitute a judicial admission, the statement must be one of fact—a legal
conclusion does not suffice.” (citation omitted)); see also N.Y. State Nat’l Org. for Women v. Terry,
159 F.3d 86, 97 n.7 (2d Cir. 1998) (“Plaintiffs’ statements of their theory of the case do not
constitute judicial admissions.”).
3. Waiver
Utica argues that CNA “waived any argument that it did not owe a duty to defend” by
conceding that duty. Dkt. No. 109 at 8. The Court finds this argument unconvincing for at least
two reasons. First, Utica has not addressed CNA’s revocation of any such waiver, which occurred
shortly after the representations to Magistrate Judge Lovric in October 2025 and did not result in
any apparent detrimental reliance by Utica. See supra Section III.E.1. Second, the general rule is
that “[w]aiver cannot create coverage where none exists.” Universal Prop. & Cas. Ins. Co. v. Jean,
426 So. 3d 504, 505 (Fla. 4th Dist. Ct. App. 2025) (citation omitted). CNA’s representations to
Magistrate Judge Lovric in October 2025 therefore do not outweigh the legal interpretation of the
Policy that New Country is not an additional insured.
In sum, although the Court finds CNA’s unequivocal representations to the Court in
October 2025 that it had a duty to defend somewhat imprudent, none of the doctrines proffered by
Utica justifies departing from the result reached on CNA’s motion to dismiss under the ordinary
Rule 12(b)(6) motion analysis. CNA is thus entitled to dismissal of the Amended Complaint, and
the Court does not address CNA’s alternative request for a stay of this action. However, under
these circumstances the Court exercises its discretion to deny CNA costs as a prevailing party
under Federal Rule of Civil Procedure 54(d). See, e.g., Carter v. Inc. Vill. of Ocean Beach, 759
F.3d 159, 164 (2d Cir. 2014) (“[T]he decision to award costs under Rule 54(d)(1) is committed to
the sound discretion of the district court.) (citation and internal quotation marks omitted);
Bochner v. City of New York, 118 F 4th 505, 526-27 (2d Cir. 2024) (denying costs to party whose
actions “unreasonably and unnecessarily delayed consideration” of jurisdictional question).
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion to dismiss, Dkt. No. 54, is GRANTED, and the
Amended Complaint is DISMISSED with prejudice; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly and close
this action.
IT ISSO ORDERED.
Dated: August 3, 2026 ; / ~
Elizabeth C. Coombe
U.S. District Judge
20