        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

941
CA 10-02440
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


FARM FAMILY CASUALTY INSURANCE COMPANY,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRADY FARMS, INC., DEFENDANT-RESPONDENT.


HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CHAMBERLAIN D’AMANDA OPPENHEIMER & GREENFIELD LLP, ROCHESTER (HENRY R.
IPPOLITO OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Genesee County
(Robert C. Noonan, A.J.), entered March 31, 2010 in a declaratory
judgment action. The judgment declared that plaintiff is obligated to
indemnify defendant for certain payments.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion is denied
and judgment is granted in favor of plaintiff as follows:

          It is ADJUDGED and DECLARED that plaintiff has no duty
     to defend or indemnify defendant with respect to any
     financial liabilities incurred in connection with the death
     of John T. Nichols under the Special Farm Package “10”
     policy.

     Memorandum: Plaintiff commenced this action seeking a
declaration that it has no duty to defend or indemnify defendant, the
owner and operator of a farm, in connection with fatal injuries
sustained by defendant’s employee (hereafter, decedent) while working
at the farm. At the time of the accident, defendant was insured under
a primary policy issued by plaintiff, entitled the Special Farm
Package “10” policy (hereafter, Package policy), as well as an
umbrella policy also issued by plaintiff. Defendant did not have
workers’ compensation insurance at that time. Supreme Court
thereafter granted defendant’s motion for summary judgment seeking a
declaration that, inter alia, plaintiff is obligated to defend and
indemnify defendant under the Package policy “for all losses arising
out of the death of” decedent. In granting the motion, the court
agreed with defendant that the Package policy exclusions on which
plaintiff relied do not operate to defeat coverage for defendant.
According to defendant’s attorney, however, the court indicated that
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                                                         CA 10-02440

it would not rule on the issue whether the workers’ compensation award
issued against defendant in connection with decedent’s death falls
within the coverage of the Package policy because there was no such
motion before it seeking that relief.

     After multiple chambers conferences, defendant made a second
motion for summary judgment seeking a declaration that, inter alia,
the workers’ compensation award was covered by the Package policy.
The court granted the motion, declaring that plaintiff is obligated
under the Package policy to indemnify defendant, inter alia, for
payments required to be made to decedent’s widow in accordance with
the workers’ compensation award, as well as for funeral expenses
expended by the widow and for reasonable fees and expenses paid by
defendant to its attorneys in connection with both the workers’
compensation proceedings and this action. We reverse.

     We note at the outset that we reject plaintiff’s contention that
the court erred in entertaining defendant’s second motion for summary
judgment. Although it is well settled that “successive motions for
summary judgment are generally disfavored” (Rupert v Gates & Adams,
P.C., 83 AD3d 1393, 1395), such motions for summary judgment are
permitted where there is “newly discovered evidence or other
sufficient cause” (Giardina v Lippes, 77 AD3d 1290, 1291, lv denied 16
NY3d 702). Here, the court did not rule on the issue whether the
subject workers’ compensation award is within the coverage of the
Package policy because there was no motion then before it seeking that
relief, and the record establishes that the second motion was, if not
encouraged, certainly not discouraged by the court. We thus conclude
that “ ‘there was sufficient cause for defendant[’s] [second]
motion’ ” (Tallie v Rochester Gas & Elec. Corp., 68 AD3d 1808, 1810).

     We further conclude, however, that the court erred in granting
defendant’s second motion. “In determining a dispute over insurance
coverage, we first look to the language of the policy . . . We
construe the policy in a way that ‘affords a fair meaning to all of
the language employed by the parties in the contract and leaves no
provision without force and effect’ ” (Consolidated Edison Co. of N.Y.
v Allstate Ins. Co., 98 NY2d 208, 221-222; see Raymond Corp. v
National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162,
rearg denied 5 NY3d 825). “As with the construction of contracts
generally, ‘unambiguous provisions of an insurance contract must be
given their plain and ordinary meaning, and the interpretation of such
provisions is a question of law for the court’ ” (Vigilant Ins. Co. v
Bear Stearns Cos., Inc., 10 NY3d 170, 177).

     Here, the Package policy sets forth in relevant part that
plaintiff “provide[s] coverage . . . if a claim is made or a suit is
brought against an INSURED for damages because of BODILY INJURY or
PROPERTY DAMAGE caused by an OCCURRENCE to which [the] coverage [in
the policy] applies.” The workers’ compensation claim made on
decedent’s behalf establishes that his estate elected to forego the
recovery of damages through a civil action and instead sought to
pursue what was essentially a claim for the workers’ compensation
insurance benefits defendant should have secured for him. Pursuant to
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                                                         CA 10-02440

Workers’ Compensation Law § 26-a (1) (a), an employer that failed to
secure workers’ compensation benefits for an injured worker is liable
for the payment of benefits awarded to the injured worker. Thus, in
effect, defendant employer is substituted for the insurer it failed to
hire as the party responsible for payment of the workers’ compensation
benefits awarded to decedent. Consequently, the liability of
defendant to decedent arises from defendant’s failure to meet its
statutory insurance procurement obligation rather than from the bodily
injury sustained by decedent, and we conclude that there is no
coverage for such liability under the Package policy (cf. Charles F.
Evans Co. v Zurich Ins. Co., 95 NY2d 779).

     Finally, in view of the uncontroverted proof in the record that
the workers’ compensation award issued against defendant in connection
with decedent’s death is outside the scope of coverage for defendant
under the Package policy, we exercise our power to search the record
and grant summary judgment to plaintiff (see CPLR 3212 [b]; Merritt
Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111).




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
