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

1252
CA 12-00182
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND WHALEN, JJ.


JANNIE NESMITH, IN HER REPRESENTATIVE CAPACITY
ONLY AS PARENT AND NATURAL GUARDIAN OF JANNIE
PATTERSON, AN INFANT AND LORENZO PATTERSON, JR.,
PLAINTIFFS-RESPONDENTS,                               OPINION AND ORDER

                    V

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT.


SHAPIRO, BEILLY & ARONOWITZ, LLP, NEW YORK CITY (ROY J. KARLIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

NIXON LAW FIRM, PLLC, WHITESBORO (JAMES E. NIXON OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

ANDERSON KILL & OLICK, P.C., NEW YORK CITY (JOHN G. NEVIUS OF
COUNSEL), FOR UNITED POLICYHOLDERS, AMICUS CURIAE.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered October 27, 2011.
The judgment, insofar as appealed from, denied defendant’s motion for
summary judgment and granted that part of the plaintiffs’ cross motion
seeking a declaration.

     It is hereby ORDERED that the   judgment insofar as appealed from
is unanimously reversed on the law   without costs, the cross motion is
denied in its entirety, the motion   is granted insofar as declaratory
relief was sought, and judgment is   granted in favor of defendant as
follows:

          It is ADJUDGED and DECLARED that plaintiffs’ losses are
     encompassed by the $500,000 per occurrence limit in the
     insurance policy at issue.

     Opinion by SMITH, J.: Plaintiffs commenced this action seeking a
declaration of the rights of the parties to an insurance policy. In
November 1991, defendant issued the policy to Tony Clyde Wilson, the
owner of an apartment building in the City of Rochester. The policy,
which had a per-occurrence limit of $500,000, was for one year, and it
was renewed for two additional one-year periods. In 1993, two
children were exposed to lead paint while living in an apartment in
that building, and one suffered injuries as a result of that exposure.
According to Wilson’s deposition testimony, he attempted to remediate
the lead paint condition after learning that the children had been
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                                                         CA 12-00182

exposed to lead, although the record is unclear with respect to the
exact actions that he undertook. That family moved out of the
apartment shortly thereafter, and the mother of those children later
commenced an action against, inter alia, Wilson, seeking damages for
injuries that the child sustained as a result of her exposure to lead
(first tort action). In 1994, two children of a subsequent tenant
were also exposed to lead in the same apartment. Plaintiffs herein
commenced a separate action to recover damages for the personal
injuries sustained by those two children (second tort action). While
the second tort action was pending, the first tort action settled for
$350,000, which defendant paid pursuant to its policy. Defendant took
the position that the noncumulation clause in the policy limited its
liability for all lead exposures in the apartment to a single policy
limit of $500,000, and offered plaintiffs the remaining $150,000 of
coverage to settle the second action. The parties entered into a
stipulation whereby Wilson was released from liability. They further
agreed that plaintiffs would recover $150,000 if the noncumulation
clause limited recovery to a single policy limit as claimed by
defendant, but plaintiffs would recover $500,000 if the policy also
required defendant to pay the full policy limit for the injuries
sustained by the second set of children. Plaintiffs then commenced
this declaratory judgment action to resolve that issue. Defendant
appeals from a judgment denying its motion for summary judgment
dismissing the complaint and granting plaintiffs’ cross motion insofar
as it sought a declaration that the amount of insurance coverage to
which plaintiffs are entitled is the full $500,000 policy limit.

     At issue on this appeal is whether the policy requires defendant
to pay a second full policy limit under these circumstances or whether
plaintiffs’ losses are encompassed by the $500,000 per occurrence
limit in the insurance policy. We agree with defendant that, pursuant
to the unequivocal language of the policy, defendant is responsible
only up to its limit for a single policy, and we thus conclude that
Supreme Court should have granted a declaration in favor of defendant.

     Our analysis begins with the well-settled proposition that
“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” (White v Continental Cas. Co., 9
NY3d 264, 267; see State of New York v Home Indem. Co., 66 NY2d 669,
671). The policy provision at issue states:

          “Regardless of the number of insured persons,
          injured persons, claims, claimants or policies
          involved, our total liability under the Family
          Liability Protection coverage for damages
          resulting from one accidental loss will not exceed
          the limit shown on the declarations page. All
          bodily injury and property damage resulting from
          one accidental loss or from continuous or repeated
          exposure to the same general conditions is
          considered the result of one accidental loss”
          (emphasis omitted).
                                 -3-                          1252
                                                         CA 12-00182

The Court of Appeals interpreted this insurer’s nearly identical
policy provision in Hiraldo v Allstate Ins. Co. (5 NY3d 508, 512).
There, a child was injured by exposure to lead in an apartment covered
by a policy that the property owners renewed for two additional policy
periods while the injured party stayed in the apartment and was
further exposed to the lead. The Court of Appeals, relying in part
upon three federal District Court decisions applying New York law to
this policy language (see Bahar v Allstate Ins. Co., 2004 WL 1782552,
2004 US Dist LEXIS 15612 [SD NY, Aug. 9, 2004]; Greene v Allstate Ins.
Co., 2004 WL 1335927, 2004 US Dist LEXIS 10860 [SD NY, June 15, 2004];
Greenidge v Allstate Ins. Co., 312 F Supp 2d 430 [SD NY 2004]),
concluded that the noncumulation clause was fatal to the plaintiff’s
claim that the insurer should pay its full policy limit on all three
policies.

     Pursuant to the Court of Appeals’ decision in Hiraldo, the mere
fact that the property owners therein renewed their policy for two
additional policy periods does not permit the plaintiffs to recover
more than a single policy limit. And, based upon the clear language
of the policy at issue here, the number of claims and claimants does
not require the insurer to pay more than its single policy limit (see
Ramirez v Allstate Ins. Co., 26 AD3d 266, 266; see generally Mt.
McKinley Ins. Co. v Corning Inc., 96 AD3d 451, 452). Thus, our
determination turns on the resolution of the discrete issue whether
the exposure of children to lead paint in an apartment during
different tenancies is encompassed by the phrase “resulting from . . .
continuous or repeated exposure to the same general conditions” in the
noncumulation clause. We conclude that the only reasonable
interpretation of that clause requires that the two claims be
classified as a single accidental loss within the meaning of the
policy.

     The evidence establishes that the two sets of children lived in
the same apartment at different times, less than a year apart.
Although the owner testified at a deposition that he attempted to
remediate the lead hazard, there is nothing in the record establishing
that he removed all of the lead paint from the subject apartment.
Upon a close reading of that deposition testimony, we conclude that it
fails to establish what, if any, action the owner actually took to
remediate the lead paint hazard. Furthermore, there is no evidence
that the owner added other lead paint to the apartment in the interim,
and indeed paint containing lead could not legally have been sold
anywhere in the United States for more than 15 years prior to that
time (see 16 CFR 1303.1; 42 FR 44199). Consequently, the evidence
establishes that the lead paint that injured the second set of
children is the same lead paint that was present in the apartment when
the first set of children lived there. The First Department concluded
in asbestos-related litigation that “any group of claims arising from
exposure to an asbestos condition at a common location, at
approximately the same time (for example at the same steel mill or
factory), may be found to have arisen from the same occurrence,” as
defined in a provision similar to the one in this case (Mt. McKinley
Ins. Co., 96 AD3d at 452). We agree with that conclusion and apply it
here, in the context of lead-related litigation. Inasmuch as the
                                 -4-                          1252
                                                         CA 12-00182

claims arise from exposure to the same condition, and the claims are
spatially identical and temporally close enough that there were no
intervening changes in the injury-causing conditions, they must be
viewed as a single occurrence within the meaning of the policy.

     Plaintiffs’ remaining contentions do not warrant extended
discussion. We reject plaintiffs’ contention that the court properly
denied defendant’s motion due to outstanding discovery issues. The
court specifically stated that the issue of discovery was moot, and
did not base its determination on that point. We also reject
plaintiffs’ contention that, due to the remediation performed by the
owner, the subsequent exposure of the second set of children must be
viewed as a different accident. As discussed, there is no evidence
establishing the remediation that was performed, and the evidence
establishes that the same general conditions, the preexisting lead
paint, caused the injury to both sets of children. “Although the
children may have ingested the lead at different times and their blood
tests showed different levels of exposure, the injuries all flowed
from the same conditions in their immediate environment,” and thus the
noncumulation clause limits the plaintiffs in the first and second
tort actions to a single policy limit (Allstate Ins. Co. v Bonn, 709 F
Supp 2d 161, 167 [DC RI, 2010]). Plaintiffs’ contention that Monroe
County certified that the hazard had been removed is not supported by
the record. Similarly, the record does not support the amicus
curiae’s oft-repeated allegation that the two sets of children lived
in different apartments.

     We have considered the remaining contentions of plaintiffs and
the amicus curiae and conclude that they are without merit.
Accordingly, we conclude that the judgment insofar as appealed from
should be reversed and that the cross motion should be denied in its
entirety, and we further conclude that judgment should be granted in
defendant’s favor, declaring that plaintiffs’ losses are encompassed
by the $500,000 per occurrence limit in the insurance policy at issue.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
