1 No. 78
Agoado Realty Corp. et al.,
Respondents,
v.
United International Insurance Company,
Appellant, et al.,
Defendants.
_________________________________________________________________
2000 NY Int. 79
June 20, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Bruce Robins, for appellant.
Robert H. Goldberg, for respondents.
_________________________________________________________________
WESLEY, J:
In this appeal we are asked to determine whether the intentional
assault of a tenant by an unknown assailant is an "accident" and hence
a covered "occurrence" under a landlord's insurance policy, and
whether a policy exclusion for "expected or intended" injuries
applies. We conclude that the loss is a covered occurrence and,
concomitantly, that the policy exclusion does not apply to the
circumstances presented here.
Plaintiff landlords owned a building in which on May 19, 1996, a
tenant was murdered by an unknown assailant. On February 10, 1997
decedent's estate commenced a wrongful death action against plaintiffs
by service of a summons and complaint on the Secretary of State,
alleging, among other causes of action, negligent security. Notice of
service was forwarded to plaintiffs' designated agent (their
attorney), who, allegedly unbeknownst to plaintiffs, was deceased. On
April 8, 1997, counsel representing decedent's estate informed
plaintiffs by letter that, despite service of a summons and complaint
several weeks earlier, no response had been received.
Plaintiffs received a copy of the summons and complaint on June 9,
1997 and notified their broker. On June 20, 1997 defendant insurer
received the summons and complaint, as well as a notice of occurrence.
Defendant disclaimed coverage several weeks later citing provisions in
the policy requiring notice "as soon as practicable" of any
SNIPPETS:
Robert H. Goldberg, for respondents.
In this appeal we are asked to determine whether the intentional assault of a tenant by an
On February 10, 1997 decedent's estate commenced a wrongful death action against plaintiffs
On June 20, 1997 defendant insurer received the summons and complaint, as well as a notice of
Defendant disclaimed coverage several weeks later citing provisions in the policy requiring
plaintiffs commenced this action seeking a declaration that defendant was required to defend
Defendant raised five affirmative defenses, the first three based on plaintiffs' failure to
Almost one year later defendant moved to amend its answer to add two affirmative defenses:
The court denied defendant's motion to amend, concluding that the wrongful death action was
The court also granted partial summary judgment to plaintiffs to the extent of dismissing the
We agree with the Appellate Division's conclusion that defendant should not have been
questions of fact remain as to whether plaintiffs notified defendant of their claim as soon
Co. this Court articulated the rule for determining whether a loss is the result of an
Moreover, if a coverage exclusion is intended that is not apparent from the language of the
we conclude that the murder constitutes an accident for purposes of determining defendant's
The pleadings in the underlying action set forth a claim of negligent security, demonstrating
Vernon the insurer commenced a declaratory judgment action to disclaim coverage under a
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