MOUNT VERNON FIRE INSURANCE COMPANY, PLAINTIFF, v. CREATIVE HOUSING LTD. ET
AL., AND LINNETTE HUNTER, DEFENDANTS.
88 N.Y.2d 347, 668 N.E.2d 404, 645 N.Y.S.2d 433 (1996).
June 11, 1996
USCOA,2 No. 132 (1996 NY Int. 135)
Decided June 11, 1996
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Michael A. Miranda, for Plaintiff.
Michael Majewski, for Defendants Creative et al.
Brian J. Farrell, for Defendant Hunter.
SIMONS, J.:
The United States Court of Appeals for the Second Circuit has
certified this matter to us to settle important questions of law in
this State respecting insurance coverage (see, 22 NYCRR 500.17). The
questions arise from the following facts.
In April, 1991, Lynette Hunter was criminally assaulted in an
apartment building owned and managed by defendant Creative Housing
Ltd. Hunter sued the owner, alleging negligent supervision, management
and control of the premises. Creative Housing sought a defense and
indemnification from its insurer, plaintiff Mount Vernon Fire Ins.
Co., under a policy in which Mount Vernon had agreed to pay "those
sums that the insured shall become obligated to pay as damages for
'bodily injury' or 'property damage' to which this insurance applies."
Mount Vernon instituted this diversity action in federal court,
seeking a declaratory judgment that it had no duty to defend or
indemnify Creative Housing in Hunter's civil lawsuit because its
policy excluded coverage for claims based on assault and battery. The
exclusion provided:
"It is agreed that no coverage shall apply under this policy for
any claim, demand or suit based on Assault and Battery, and Assault
and Battery shall not be deemed an accident whether or not
committed by or at the direction of the insured."
The District Court dismissed Mount Vernon's action, holding that the
exclusion was ambiguous and should, under settled rules of law, be
SNIPPETS:
MOUNT VERNON FIRE INSURANCE COMPANY, PLAINTIFF, v. CREATIVE HOUSING LTD. ET
AL., AND LINNETTE HUNTER, DEFENDANTS.
Michael Majewski, for Defendants Creative et al. Brian J. Farrell, for Defendant Hunter.
The United States Court of Appeals for the Second Circuit has certified this matter to us to
In April, 1991, Lynette Hunter was criminally assaulted in an apartment building owned and
Creative Housing sought a defense and indemnification from its insurer, plaintiff Mount
Mount Vernon instituted this diversity action in federal court, seeking a declaratory
The District Court dismissed Mount Vernon's action, holding that the exclusion was ambiguous
The court noted first that reasonable minds could differ on whether the language "based on
It also found the exclusion ambiguous when, as happened here, it was applied to an
On appeal to the United States Court of Appeals for the Second Circuit, Mount Vernon
In Val-Blue we held an exclusion clause containing language identical to the language found
We accepted the certified questions and now answer both in favor of plaintiff Mount Vernon by
Co. (35 AD2d 114, affd on opn below 31 NY2d 830), involved a claim against a father after the
in Cone v Nationwide Mut.
Co. under facts substantially similar to those in Lalomia, we adopted the Lalomia reasoning
There is no significant difference between the meaning of the phrases "based on" and "arising
Following certification of questions by the United States Court of Appeals for the Second
he insured is assault.
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