ACE FIRE UNDERWRITERS INSURANCE COMPANY v. PA

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Supreme Court, Appellate Division, Second Department, New York.

ACE FIRE UNDERWRITERS INSURANCE COMPANY, appellant-respondent, v. ORANGE-ULSTER BOARD OF COOPERATIVE EDUCATIONAL SERVICES, defendant third-party plaintiff-respondent, William J. Bassett, et al., defendants-respondents; National Union Insurance Company of Pittsburgh, PA, et al., third-party defendants-respondents-appellants.

Decided: June 28, 2004

FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and BARRY A. COZIER, JJ. Sonnenschein Nath & Rosenthal, LLP, New York, N.Y. (Deborah H. Renner of counsel), for appellant-respondent. Steinberg & Cavaliere, LLP, White Plains, N.Y. (Steven A. Coploff of counsel), for third-party defendant-respondent-appellant National Union Fire Insurance Company of Pittsburgh, PA. Baxter & Smith, White Plains, N.Y. (Sim R. Shapiro of counsel) and Bollinger, Ruberry & Garvey, Chicago, Ill. (Jeffrey A. Goldwater and Robert A. Chaney of counsel), for third-party defendant-respondent-appellant Coregis Insurance Company (one brief filed). Donoghue, Thomas, Auslander & Drohan, Hopewell Junction, N.Y. (Vincent P. D'Andrea and James P. Drohan of counsel), for defendant third-party plaintiff-respondent and defendants-respondents.

In an action for a judgment declaring that the plaintiff is not obligated to defend and indemnify the defendants in an underlying action entitled Doe v. Orange-Ulster BOCES, pending in the Supreme Court, Orange County, under Index No. 8148/99 (1) the plaintiff appeals, as limited by its brief, from stated portions of a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered July 24, 2002, which, inter alia, upon so much of an order of the same court dated April 10, 2002, as denied that branch of its motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendants in the underlying action and as granted those branches of the defendants' cross motion which were for summary judgment declaring that the plaintiff is obligated to defend and indemnify them in the underlying action and for legal fees and expenses, declared that it is obligated to provide primary insurance coverage to the defendants in the underlying action, and awarded legal fees and expenses to the defendants, (2) the third-party defendant National Union Fire Insurance Company of Pittsburgh, PA cross-appeals from so much of the same judgment as, upon so much of the order dated April 10, 2002, as denied that branch of its cross motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendants in the underlying action, declared that it is obligated to provide excess insurance coverage to the defendants in the underlying action, and (3) the third-party defendant Coregis Insurance Company cross-appeals from so much of the same judgment as declared that it is obligated to provide excess insurance coverage to the defendants in the underlying action.

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendants payable by the plaintiff and the third-party defendants appearing separately and filing separate briefs.

The alleged assault upon the mentally disabled plaintiff in the underlying action by the nonparty employee of the defendant Orange-Ulster Board of Cooperative Educational Services (hereinafter BOCES), was “unexpected, unusual and unforeseen” from BOCES' point of view, and therefore was an “accident,” and did not fall within the “expected or intended” exclusion of the general liability policies issued by the plaintiff, ACE Fire Underwriters Insurance Company, (hereinafter Ace), and the third-party defendant Coregis Insurance Co. (hereinafter Coregis) (see RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 2 N.Y.3d 158, 777 N.Y.S.2d 4, 808 N.E.2d 1263).   As such, the Supreme Court properly granted the defendants summary judgment and declared that Ace and Coregis are obligated to defend and indemnify the defendants in the underlying action (see RJC Realty Holding Corp. v. Republic Franklin Ins. Co., supra ).

The Supreme Court's determination that the third-party defendant National Union Fire Insurance Co., which issued an errors and omissions policy to BOCES, is also obligated to defend and indemnify the defendants in the underlying action, was likewise proper (see Watkins Glen Cent. School Dist. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 286 A.D.2d 48, 732 N.Y.S.2d 70).

The parties' remaining contentions are without merit.

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