An appellate court in New York, affirming a trial court's decision, has ruled that an exclusion in a property insurance policy precluded coverage of an underlying wrongful death lawsuit stemming from a drowning death near the insured's lake house.
The Case
A wrongful death action was filed against Jevan Damadian, alleging that he had been negligent in not providing proper life preservers at his property, that he had failed to properly check and maintain the kayaks he allowed the occupants renting his lake house to use on a nearby pond, and that as a result Jonathan Tang had fallen into the water and drowned.
North Country Insurance Company, which had issued a property insurance policy to Mr. Damadian that insured the property Mr. Tang had rented, asserted that it was not obligated to defend or indemnify Mr. Damadian in the underlying wrongful death action.
After coverage litigation ensued, North Country moved for summary judgment.
The trial court granted the motion, and Mr. Damadian appealed.
The North Country Insurance Policy
The North Country insurance policy's watercraft provision excluded coverage for bodily injury:
resulting from the use, occupancy, renting, loaning, or entrusting
of watercraft while not ashore.
The Appellate Court's Decision
The appellate court affirmed.
In its decision, the appellate court explained that, to be relieved of its duty to defend on the basis of the policy exclusion, North Country had the "heavy burden" of demonstrating that the allegations in the underlying complaint against the insured, Mr. Damadian, were "wholly within that exclusion," that the exclusion was "subject to no other reasonable interpretation," and that there was "no possible factual or legal basis upon which the insurer may eventually be held obligated to indemnify the insured under any policy provision."
The appellate court then found that, because the kayak was not ashore, the exclusion applied.
Accordingly, the appellate court concluded, North Country had no duty to defend or indemnify Mr. Damadian in the underlying wrongful death action brought against him, and it affirmed the decision by the trial court to grant summary judgment in favor of North Country.
The case is Automobile Ins. Co. of Hartford v. Damadian, No. 10532 (N.Y. App. Div. 1st Dep't Dec. 10, 2019). Attorneys involved include: Anderson Kill P.C., New York (Marshall Gilinsky of counsel), for appellant. Finkelstein & Partners, LLP, Newburgh (George A. Kohl, II of counsel), for Jonathan Tang, respondent. Smith Dominelli & Guetti LLC, Albany (Christopher A. Guetti of counsel), for North Country Insurance Company, respondent.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].