The Plaintiff, Metropolitan Property and Casualty Insurance Company's ("Metropolitan") motion seeking an order, pursuant to CPLR § 3001 and § 3212, granting it summary judgment declaring that it has no obligation to defend and/or indemnify the Defendant, JACQUELINE M. MARSHALL ("MARSHALL") in the matter entitled Jay H. Fox, Individually and as the Executor of Denise Fox, Andrew Fox and Rebecca T. Fox v. Evan Marshall, SLS Residential, Inc., SLS Health, Inc., SLS Wellness, Inc., Supervised Lifestyles, Inc., SDL Case Management, Inc., SDL Case Management, LLC, SLS Health, LLC, Joseph Santoro, Alfred Bergman, Mark J. Stumacher, Shawn Prichard, Dave Moore, Linda Padrof, Lauren Miller, Kendra Kohut, Betsy Bergman, Jacqueline Marshall and John and Jane Does, 1 through 30, Supreme Court Nassau County, Index No. 014183/08 ("the Fox action") is decided as provided for herein.

The Defendant, MARSHALL's cross-motion, seeking an order, pursuant to CPLR § 3001 and § 3212, granting her summary judgment declaring that the Plaintiff, METROPOLITAN is obligated to defend her in the Fox action, is decided as provided herein.

In this action, the Plaintiff seeks a declaration that it does not have any obligation to defend or indemnify its insured, the Defendant, MARSHALL, in the Fox action in which the plaintiffs in that action seek to recover for the death of their wife and mother, Denise Fox. Denise Fox was murdered by the Defendant, MARSHALL's son, Evan on August 17, 2006. On that date, Evan resided in an upstate adult residential substance abuse and psychiatric facility in Brewster, New York but was on Long Island pursuant to a weekend pass which allowed him to visit his mother, the Defendant, Marshall.

The Plaintiff's policy only affords the Defendant personal excess liability coverage in the amount of $250,000/$500,000 for automobile coverage and $300,000 for homeowners coverage. State Farm Insurance Company is the Defendant's primary insurance carrier. The Plaintiff's policy affords coverage "for damages to others caused by an "occurrence" for which the law holds an insured responsible . . . ." "An insured" is defined as "you or a relative residing in your household" and an "occurrence" is defined by the policy as "an accident . . . that results during the policy period in personal injury or property damage." The policy provides that it does not apply, inter alia, to "personal injury or property damage resulting from any intentional act committed by an insured or at the direction of any insured." Finally, the policy requires the Defendant, MARSHALL to notify Metropolitan "as soon as practicable of an occurrence that may be covered by the policy."

On or about September 10, 2007, Fox's attorney notified the Defendant, MARSHALL via letter that they were contemplating an action against her and that she should so notify her homeowner's insurance carrier. The Defendant's criminal attorney, William Keahon, Esq., advised her that she would not face liability for the August 17, 2006. Notwithstanding the statement by Mr. Keahon, the Defendant notified her primary insurance carrier, State Farm of the event.

In response to the notification by the Defendant, State Farm issued a letter on April 21, 2008 notifying the Defendant, MARSHALL that, according to State Farm, the Defendant was not legally liable for Denise Fox's death. State Farm further indicated in the April 21st letter that should an action be commenced against her, it would provide the Defendant, MARSHALL with a defense, and, if applicable, would pay for damages awarded against the Defendant, subject to [*2]the terms, conditions, and coverage exclusions of her policy. See Exhibit "3" attached to the Defendant's Cross-Motion.

The Fox action was commenced on or about July 31, 2008 and the Defendant, MARSHALL was served with the Summons and Complaint on or about August 2, 2008. All of the claims advanced in the Fox action against the Defendant sound in negligence. Mr. Keahon immediately forwarded the Fox Summons and Complaint to State Farm which had assumed the Defendant's defense in that action. Mr. Keahon inquired of the Defendant as to State Farm's umbrella policies. The Defendant located the Plaintiff, METROPOLITAN's policy and placed the Plaintiff on notice of the incident for the very first time on August 18, 2008. By letter dated September 22, 2008, the Plaintiff disclaimed coverage to the Defendant, MARSHALL solely on the grounds of late notice. By letter dated September 24, 2008, the Plaintiff disclaimed coverage to Evan Marshall on several grounds. The Plaintiff maintained that Evan was not a resident of the Defendant's household on August 17, 2006, and therefore, was not "an insured." It further maintained that Evan's acts did not constitute an "occurrence" under its policy and were nevertheless excluded as an "intentional act." The Plaintiff had assessed the Defendant's liability in the Fox action at zero percent.

Metropolitan commenced this action on December 22, 2008 seeking declaratory relief.

Evan Marshall did not live with his mother, the Defendant, MARSHALL on the date he murdered Denise Fox. Evan was out on a weekend pass. The Defendant, MARSHALL denies even knowing that her son, Evan Fox, was out on a weekend pass and maintains that she was not home on the date in question. Suffice it to say, it is not disputed that Evan Marshall was not a resident of the Defendant's home on the day he murdered Denise Fox. As such, he does not qualify as "an insured."

"[A]n insurer's disclaimer is strictly limited to those grounds stated in the notice of disclaimer, which disclaimer must clearly apprise the insured of the grounds on which the disclaimer is based." Village of Brewster v Virginia Sur. Co., Inc., 70 AD3d 1239, 1242 (2nd Dept. 2010), quoting City of Kingston v. Harco Natl. Ins. Co., 46 AD3d 1320, 1321 (3rd Dept. 2007), lv dism., 10 NY3d 822 (2008), quoting Maroney v. New York Cent. Mut. Fire Ins. Co., 10 AD3d 778, 780-781 (3rd Dept. 2004), aff'd., 5 NY3d 467 (2005). However, "A disclaimer pursuant to Insurance Law § 3420 (d) is required when the denial of coverage is based upon a policy exclusion without which the claim would be covered". Ciasullo v. Nationwide Ins. Co., 32 AD3d 889, 890 (2nd Dept. 2006), citing Matter of Worcester Ins. Co. v. Bettenhauser, 95 NY2d 185, 188-189 (2000); Handelsman v. Sea Ins. Co., 85 NY2d 96 (1994). "[A] disclaimer pursuant to Insurance Law § 3420(d) is unnecessary when a claim falls outside the scope of the policy's coverage portion.' " Ciasullo v. Nationwide Ins. Co., supra, at p. 890, quoting Matter of Worcester Ins. Co. v Bettenhauser, supra, at p. 188, citing Zappone v Home Ins. Co., 55 NY2d 131, 134 (1982). "Where . . . the insurance policy does not contemplate coverage in the first instance, . . . requiring payment of a claim upon failure to timely disclaim would [impermissibly] create coverage where it never existed.' " Matter of Worcester Ins. Co. v. Bettenhauser, supra, at p. 188, quoting Zappone v Home Ins. Co., supra, at p. 138.

Here, under the subject policy, occurrences are defined as "an accident." "[A]n incident is an occurrence, i.e., an accident, if from the point of view of the insured . . . [the incident resulting in the injury] was unexpected, unusual and unforeseeable (quotations omitted)." State Farm Fire [*3]and Casualty Company v. Whiting, 53 AD3d 1033 (4th Dept. 2008), quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 (1976), citing Automobile Ins. Co. of Hartford v. Cook, 7 NY3d 131, 137-138 (2006); Essex Ins. Co. v. Zwick, 27 AD3d 1092 (4th Dept. 2006). "[I]n deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen." Agoado Realty Corp. v. United Intern. Ins. Co., 95 NY2d 141, 145 (2000), citing Miller v. Continental Ins. Co., supra, at p. 677 (emphasis supplied).

Since the insured here, the Defendant, MARSHALL, obviously did not expect and could not foresee her son murdering Denise Fox, that act was in fact an "accident" from her point of view. See, RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 2 NY3d 158 (2004). Accordingly, contrary to the Plaintiff's position, its denial of coverage may not be predicated upon a lack of inclusion and absent a proper disclaimer, Marshall's claim is covered under the policy. Village of Brewster v. Virginia Sur. Co., Inc., supra, at p. 1242, citing City of Kingston v. Harco Natl. Ins. Co., supra; Maroney v. New York Cent. Mut. Fire Ins. Co., supra.

The Plaintiff's reliance on the policy's exclusion for intentional acts fails. The Plaintiff failed to disclaim on that ground and may not rely on that policy exclusion now. Village of Brewster v. Virginia Sur. Co., Inc., supra, at p. 1242, citing City of Kingston v. Harco Natl. Ins. Co., supra; Maroney v. New York Cent. Mut. Fire Ins. Co., supra.

Finally, the Plaintiff's reliance on late notice by the Defendant, MARSHALL, which was the only grounds advanced by the Plaintiff for its disclaimer, also fails. "Typically, where notice to an excess liability carrier is in issue, the focus is on when the insured reasonably should have known that the claim against it would likely exhaust its primary insurance coverage and trigger its excess coverage, and whether any delay between acquiring that knowledge and giving notice to the excess carrier was reasonable under the circumstances.' " Ambra v. Awad, 62 AD3d 732 (2nd Dept. 2009), quoting Morris Park Contr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 763, 765 (2nd Dept. 2006); see also, National Union Fire Ins. Co. of Pittsburgh, PA v. Connecticut Indem. Co., 52 AD3d 274, 276 (1st Dept. 2008). The Defendant, MARSHALL has clearly established that there is no evidence to suggest that she should reasonably believe that the claims advanced against her in the Fox action will likely exhaust her primary insurance coverage and trigger her excess coverage. Both her attorney and her primary insurer have steadfastly advised her that she is not liable for Fox's claims. In fact, the Plaintiff, METROPOLITAN even assessed her liability at zero percent. The Defendant, MARSHALL's notice to the Plaintiff was accordingly, timely.

It is hereby declared that under its policy with the Plaintiff as her excess carrier, the Plaintiff, METROPOLITAN is obliged to indemnify the Defendant, MARSHALL to the extent that she is held liable in the Fox action in excess of the coverage afforded under her primary policy held by State Farm.

Accordingly, it is hereby

ORDERED; that the Plaintiff, METROPOLITAN's motion (Mot. Seq. 01) for an order pursuant to CPLR § 3001 and § 3212 granting it summary judgment declaring that it has no obligation to defend and/or indemnify the Defendant, JACQUELINE M. MARSHALL ("MARSHALL") in the Fox action is hereby DENIED; and it is further

ORDERED; that the Defendant, MARSHALL's cross-motion (Mot. Seq. 02) for an order [*4]pursuant to CPLR § 3001 and CPLR § 3212, granting her summary judgment declaring that the Plaintiff is obligated to defend her in the Fox action is GRANTED.

This constitutes the decision and order of the Court.

Dated:Mineola, New York

July 6, 2010

____________________________

Hon. Randy Sue Marber, J.S.C.