United National Insurance Company v. Scottsdale Insurance Company

SUMMARY ORDER Plaintiff-Appellant United National Insurance Company appeals from the district court’s (Block, J.) March 7, 2011 Memorandum and Order granting Scottdale’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. We assume the parties’ familiarity with the underlying facts and procedural history. We review de novo a district court’s grant of summary judgment, with the view that “[sjummary judgment is appropriate only if the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Upon such review, we affirm for substantially the same reasons set forth in the district court’s thorough Memorandum and Order. Although we do not decide the issue, we question whether an insurer, like United National, can seek, in a declaratory judgment action, coverage for its insured where it explicitly disclaims seeking any benefit for itself. Even if, however, United National can properly bring this action we agree with the district court that the plain language of Scottsdale’s policy does not require Scottsdale to defend and indemnify 164 Atlantic and Two Trees. See Jefferson v. Sinclair Refining Co., 10 N.Y.2d 422, 426-27, 223 N.Y.S.2d 863, 179 N.E.2d 706 (1961); York Restoration Corp. v. Solty’s Constr., Inc., 79 A.D.3d 861, 862, 914 N.Y.S.2d 178 (2d Dep’t 2010). Finally, we conclude that Scottsdale was not estopped from disclaiming coverage under New York Insurance Law § 3420(d) because that provision does not require timely disclaimer of coverage “when the policy on which the claim rests does not, by its terms, cover the incident giving rise to liability.” Handelsman v. Sea Ins. Co. Ltd., 85 N.Y.2d 96, 99, 623 N.Y.S.2d 750, 647 N.E.2d 1258 (1994). Because we agree with the district court that Scottsdale’s policy did not provide coverage for 164 Atlantic and Two Trees, we find section 3420(d) inapplicable. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.