Simon Property Group, L.P. v. Lumbermen's Mutual Casualty Co. , 459 F. App'x 16 ( 2012 )

10-3853-cv
Simon Property Group, L.P. v. Lumbermen’s Mut. Cas. Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of January, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
11
12
13 SIMON PROPERTY GROUP, L.P.,
14
15 Defendant-Third-Party Plaintiff-
16 Appellant,
17
18 -v.- 10-3853-cv
19
20 LUMBERMEN’S MUTUAL CASUALTY COMPANY, BURNS
21 INTERNATIONAL SECURITY SERVICES CORPORATION,
22
23 Third Party Defendants-Appellees,
24
25 JAMES LENT,
26 Plaintiff
27
28 -v.-
29
30 SIMON PROPERTY GROUP, INCORPORATED, SPG REALTY CONSULTANTS,
31 INCORPORATED, SPG REALTY CONSULTANTS, M.S. MANAGEMENT
32 ASSOCIATES, INCORPORATED, M.S. MANAGEMENT ASSOCIATES
33 (INDIANA), INCORPORATED, FASHION MALL PARTNERS L.P.,
34
35 Defendants,
1
2 and,
3
4 FASHION MALL PARTNERS L.P.,
5
6 Third-Party-Plaintiff
7
8 BROOKSTONE COMPANY, INCORPORATED, PINKERTON'S INCORPORATED,
9 WESTERN WORLD INSURANCE COMPANY, TUDOR INSURANCE COMPANY,
10
11 Third-Party-Defendants.
12
13
14
15 FOR APPELLANT: THOMAS S. NOVAK, Sills, Cummis & Gross,
16 P.C., New York, NY.
17
18 FOR APPELLEES: LAUREL A. WEDINGER, Barry, McTiernan &
19 Moore, New York, NY.
20
21 RUSSELL S. JAMISON, Marin Goodman, LLP
22 Harrison, NY.
23
24 Appeal from the United States District Court for the
25 Southern District of New York (Robinson, J.).
26
27 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
28 AND DECREED that the judgment of the district court be
29 AFFIRMED.1
1
Asserting his reliance on Greenfield v. Philles
Records, Inc., 780 N.E.2d 166, 170 (N.Y. 2002) (noting that
a written agreement must be enforced according to its terms
only where the agreement is “complete, clear and unambiguous
on its face”), and Leon v. Lukash, 504 N.Y.S.2d 455, 455
(N.Y. App. Div. 1986) (stating that the meaning of an
ambiguous contract “presents a question of fact which may
not be resolved by the court on a motion for summary
judgment”), Judge Hall would vacate the grant of summary
judgment for Burns on the grounds that in his view the word
“occurrence” in the security services contract is ambiguous.
2
1 Simon Property Group, L.P. (“Appellant”) appeals from a
2 judgment of the United States District Court for the
3 Southern District of New York (Robinson, J.), which granted
4 summary judgment in favor of Appellees, Burns International
5 Security Services Corporation (“Burns”) and Lumbermen’s
6 Mutual Casualty Company (“Lumbermen’s”). We assume the
7 parties’ familiarity with the underlying facts, the
8 procedural history, and the issues presented for review.
9 We review a grant of summary judgment de novo. McBride
10 v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.
11 2009). “Summary judgment is appropriate where there exists
12 no genuine issue of material fact and, based on the
13 undisputed facts, the moving party is entitled to judgment
14 as a matter of law.” Fed. Ins. Co. v. Am. Home Assurance
15 Co., 639 F.3d 557, 566 (2d Cir. 2011) (internal quotation
16 marks omitted); see also Fed. R. Civ. P. 56(a). We also
17 review de novo whether a contract is ambiguous under New
18 York law. Bank of N.Y. v. First Millennium, Inc., 607 F.3d
19 905, 914 (2d. Cir. 2010).
20 Here, we find no error in the district court’s grant of
21 summary judgment for Appellee Burns. The security agreement
22 between Burns and Appellant stipulates that the parties must
3
1 initiate proceedings within twelve months of “the date of
2 the occurrence giving rise to such Claim.” The agreement
3 imposes an indemnification obligation on Burns only in case
4 of Burns’s negligence and without regard to whether suit was
5 filed against Appellant. In this context, the operative
6 phrase was sufficiently clear to read the limitations period
7 as running from the incident involving Burns’s alleged
8 negligence—here, the assault. Appellant failed to initiate
9 any proceedings against Burns until three years after this
10 occurrence; therefore, Appellant was contractually barred
11 from bringing the instant claim against Burns.
12 Likewise, we find no error in the district court’s
13 grant of summary judgment for Appellee Lumbermen’s. Under
14 New York law, “compliance with a policy’s notification
15 provisions is a condition precedent to the insurer's
16 liability under the policy.” Webster ex rel. Webster v.
17 Mount Vernon Fire Ins. Co., 368 F.3d 209, 214 (2d Cir.
18 2004). Without a valid excuse, “an insured’s failure to
19 provide timely notice of a claim to its excess insurer is a
20 complete defense to coverage, regardless of whether the
21 carrier was prejudiced by the late notice.” Green Door
22 Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 287 (2d Cir.
4
1 2003) (citing Am. Home Assurance Co. v. Int'l Ins. Co., 684
2 N.E.2d 14, 16 (N.Y. 1997)).
3 The insured bears the burden of proving reasonableness
4 of delayed notice and must exercise reasonable care and
5 diligence in keeping itself informed of accidents out of
6 which claims for damages may arise. Sec. Mut. Ins. Co. of
7 N.Y. v. Acker-Fitzsimons Corp., 293 N.E.2d 76, 78-79 (N.Y.
8 1972). A good-faith belief by the insured that an incident
9 does not trigger coverage under its insurance policy “may
10 excuse or explain a seeming failure to give timely notice.”
11 Id. at 79. While the question of the reasonableness to give
12 timely notice is generally a question of fact under New York
13 law, “a delay may be unreasonable as a matter of law when
14 either no excuse is advanced or the proffered excuse is
15 meritless.” Olin Corp. v. Ins. Co. of N. Am., 966 F.2d 718,
16 724 (2d Cir. 1992).
17 Here, Lumbermen’s commercial general liability policy
18 required Appellant, as additional insured, to give notice
19 “as soon as practicable” of an occurrence that may result in
20 a claim. Appellant’s three year delay in providing notice
21 of the underlying assault is unreasonable as a matter of
22 law. Appellant cannot claim it was unaware of the incident
5
1 at the time of its occurrence because it received a report
2 of the assault from its security company, Burns, on the day
3 of the assault. See Travelers Ins. Co. v. Volmar Const.
4 Co., Inc., 300 A.D.2d 40, 43 (N.Y. App. Div. 2002).
5 Furthermore, the unusual nature of one aspect of the
6 victim’s injury, discovered fifteen months after the
7 incident, does not alone justify delay. See Olin Corp., 966
8 F.2d at 723-24 (“[I]t does not follow that an insured is
9 obligated to provide the insurer notice of an occurrence
10 only when it learns of a particular identified injury.”).
11 On the facts of this case, we cannot find that Appellant’s
12 provision of notice only after initiation of the underlying
13 lawsuit is reasonable.
14 For the foregoing reasons, the judgment of the district
15 court is hereby AFFIRMED.
16
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
20
6