Hayner Hoyt Corp. v. Utica First Insurance , 760 N.Y.S.2d 706 ( 2003 )

—Appeal from a judgment (denominated order) of Supreme Court, Onondaga County (McCarthy, J.),. entered December 14, 2001, which, inter alia, granted defendant’s cross motion for summary judgment.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by granting judgment in favor of defendant as follows:

It is adjudged and declared that plaintiff is not entitled to a defense or indemnification from defendant with respect to the underlying actions and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking judgment declaring, inter alia, that defendant must defend and indemnify plaintiff in two underlying personal injury actions. Plaintiff entered into a construction contract with subcontractor M.S. Olender & Sons (Olender) to complete the “rough framing scope” on a project. Pursuant to that subcontract, Olender was required to name plaintiff as an additional insured under a subcontractor’s comprehensive general liability and property damage policy. Plaintiff was named as an additional insured in the certificate of liability insurance issued by defendant to Olender. The plaintiffs in the underlying personal injury actions are two employees of Olender who were injured while working on the project. When plaintiff demanded that defendant defend and indemnify it in those two underlying actions, defendant disclaimed coverage based on policy exclusions. Plaintiff moved for summary judgment seeking, inter alia, an order striking the affirmative defenses in the answer and a declaration that defendant must defend and indemnify plaintiff in the underlying actions. Defendant cross-moved for summary judgment dismissing the complaint and a declaration that plaintiff is not entitled to a defense or indemnification from defendant. Supreme Court denied the motion and granted the cross motion.

We do not consider plaintiffs contention, raised for the first time on appeal, that defendant is estopped from denying coverage with respect to one of the underlying actions because its disclaimer was untimely and that there is an issue of fact whether its disclaimer was untimely with respect to the other underlying action (see Matter of USAA Cas. Ins. Co. [Kaufman], 261 AD2d 275 [1999], lv denied 94 NY2d 758 [2000]; see also Fischer v Zepa Consulting, 263 AD2d 946, 947 [1999], affd 95 NY2d 66 [2000]; Deputy Sheriffs Benevolent Assn. of Onondaga County v County of Onondaga, 288 AD2d 953, 954 [2001]). “It is well settled that ‘[a]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance’ ” (Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]).

We reject plaintiffs further contention that the policy exclusion relied upon by the court in granting the cross motion does not apply with respect to the two underlying actions. Pursuant to that exclusion, there is no coverage for “bodily injury to an employee of an insured if it occurs in the course of employment.” Plaintiff contends that the exclusion does not apply to it. We disagree. The term “an insured” is unambiguous and, when used in the policy, encompasses both Olender and plaintiff (see Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 340 [2003]; Consolidated Edison Co. of N.Y. v United Coastal Ins. Co., 216 AD2d 137 [1995], lv denied 87 NY2d 808 [1996]; Tardy v Morgan Guar. Trust Co. of N.Y., 213 AD2d 296 [1995]). The exclusion thus applies to plaintiff as an additional insured because the plaintiffs in the underlying actions were employees “of an insured,” i.e., Olender (cf. Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 125 [1959]).

Inasmuch as the court failed to declare the rights of the parties in this declaratory judgment action (see Pless v Town of Royalton, 185 AD2d 659, 660 [1992], affd 81 NY2d 1047 [1993]; Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; Boyd v Allstate Life Ins. Co. of N.Y., 267 AD2d 1038, 1039 [1999]), we modify the judgment by granting judgment in favor of defendant declaring that plaintiff is not entitled to a defense or indemnification from defendant with respect to the underlying actions.

All concur except Pigott, Jr., P.J., and Pine, J., who dissent and vote to reverse in accordance with the following memorandum.