International Rescue Committee v. Reliance Insurance

— Order of the Supreme Court, New York County (Ira Gammerman, J.), entered October 11, 1995, which denied plaintiffs motion for summary judgment, is affirmed, without costs or disbursements. Plaintiff International Rescue Committee (IRC) is a nonprofit organization which provides relief and rehabilitation services to refugees and other victims of national or international strife. Plaintiff procured a voluntary workers’ compensation policy from defendant Reliance Insurance Company (Reliance) for the period between November 15, 1993 and November 15, 1994. The policy contains several exclusions, one of which, at clause III (3), provides that the policy does not cover: "any payment to a covered employee, for any bodily injury, sickness or death arising out of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, insurrection, military or usurped power, strike, riot or civil commotion, mutiny, piracy, kidnap, or wrongful detention.” An employee of IRC was seriously injured in northwestern Somalia in late 1993 when a vehicle he was traveling in detonated a land mine. Reliance denied coverage on the basis of the exclusion set forth above, and plaintiff began this action alleging a breach of the insurance contract. Plaintiffs motion for summary judgment was denied by the IAS Court. Initially, at the time plaintiff moved for summary judgment, [642] defendants had made several requests for discovery which would enable them to better oppose plaintiff’s motion. Reliance had not yet had an opportunity to depose any person associated with IRC who had a detailed understanding of conditions in and around Luuq, the area where plaintiff’s employee was injured by the land mine. Thus, defendant Reliance had sought the deposition of Keith Frausto, plaintiff’s Director of Horn of Africa Programs, who had written a letter to another employee of plaintiff in Somalia advising that she would be working "in an area that is experiencing civil war”. In addition, Reliance had not yet deposed Kenneth Turk, plaintiff’s Team Leader in Luuq, who had investigated the incident involving the land mine. Therefore, at this early stage of the litigation, the IAS Court properly denied the motion for summary judgment since "it appear[ed] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but [could not] then be stated” (CPLR 3212 [fj). Moreover, even upon the papers submitted to the IAS Court, there were issues of fact presented as to whether, at the time of the explosion of the land mine, there were ongoing activities in Somalia which would qualify as a civil war, rebellion, or insurrection under the exclusion clause, supra, or whether the land mine which injured plaintiff’s employee was planted in such a civil war, rebellion or insurrection. If so, the language of the exclusionary clause, quoted above, specifically excludes payment for bodily injury "arising out of’ war, hostilities, civil war, rebellion, insurrection, etc. Since, on a motion for summary judgment, the opponent is entitled to all favorable inferences, the IAS Court properly found there were triable issues of fact and denied the motion (see, Consolidated Edison Co. v Jet Asphalt Corp., 132 AD2d 296, 300). Concur — Sullivan, J. P., Nardelli and Williams, JJ.