United National Insurance Company v. Scottsdale Insurance Company

11-1174-cv United National Insurance Company v. Scottsdale Insurance Company 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 15th day of February, two thousand twelve. 5 6 PRESENT: RICHARD C. WESLEY, 7 RAYMOND J. LOHIER, 8 Circuit Judges, 9 LEE H. ROSENTHAL 10 District Judge.* 11 12 13 UNITED NATIONAL INSURANCE COMPANY, 14 15 Plaintiff-Appellant, 16 17 -v.- 11-1174-cv 18 19 SCOTTSDALE INSURANCE COMPANY, 20 21 Defendant-Appellee. 22 23 24 FOR APPELLANT: STEVEN VERVENIOTIS (Michael A. Miranda, 25 on the brief), Miranda Sambursky Slone 26 Sklarin Verveniotis LLP, Mineola, NY. 27 28 FOR APPELLEE: STEPHEN D. STRAUS, Traub Lieberman Straus 29 & Shrewsberry LLP, Hawthorne, NY. 30 * Judge Lee H. Rosenthal, of the United States District Court for the Southern District of Texas, sitting by designation. 1 Appeal from the United States District Court for the 2 Eastern District of New York (Block, J.) 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the United States District 6 Court for the Eastern District of New York be AFFIRMED. 7 Plaintiff-Appellant United National Insurance Company 8 appeals from the district court’s (Block, J.) March 7, 2011 9 Memorandum and Order granting Scottdale’s motion for summary 10 judgment pursuant to Federal Rule of Civil Procedure 56. We 11 assume the parties’ familiarity with the underlying facts 12 and procedural history. 13 We review de novo a district court’s grant of summary 14 judgment, with the view that “[s]ummary judgment is 15 appropriate only if the moving party shows that there are no 16 genuine issues of material fact and that the moving party is 17 entitled to judgment as a matter of law.” Miller v. Wolpoff 18 & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). 19 Upon such review, we affirm for substantially the same 20 reasons set forth in the district court’s thorough 21 Memorandum and Order. 22 Although we do not decide the issue, we question 23 whether an insurer, like United National, can seek, in a 24 declaratory judgment action, coverage for its insured where 2 1 it explicitly disclaims seeking any benefit for itself. 2 Even if, however, United National can properly bring this 3 action we agree with the district court that the plain 4 language of Scottsdale’s policy does not require Scottsdale 5 to defend and indemnify 164 Atlantic and Two Trees. See 6 Jefferson v. Sinclair Refining Co., 10 N.Y.2d 422, 426-27 7 (1961); York Restoration Corp. v. Solty’s Constr., Inc., 79 8 A.D.3d 861, 862 (2d Dep’t 2010). 9 Finally, we conclude that Scottsdale was not estopped 10 from disclaiming coverage under New York Insurance Law 11 § 3420(d) because that provision does not require timely 12 disclaimer of coverage “when the policy on which the claim 13 rests does not, by its terms, cover the incident giving rise 14 to liability.” Handelsman v. Sea Ins. Co. Ltd., 85 N.Y.2d 15 96, 99 (1994). Because we agree with the district court 16 that Scottsdale’s policy did not provide coverage for 164 17 Atlantic and Two Trees, we find section 3420(d) 18 inapplicable. 19 For the foregoing reasons, the judgment of the district 20 court is hereby AFFIRMED. 21 22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk 24 25 3