Plaintiff Granite Avenue Utility Corporation commenced this suit to recover damages and attorneys fees against defendants for the alleged failure to procure insurance coverage, and negligence.

On May 4, 2001, Donald Vigilante and Stephanie Jenkins suffered serious physical injuries during a motorcycle accident on Richmond Road in Staten Island, New York. As a result, Vigilante and Jenkins commenced a lawsuit to recover damages against Verizon New York, which was performing work on or near the roadway at the time of the accident.

Verizon then impleaded plaintiff Granite, as subcontractor, alleging contractual indemnification. On or about July 2006, the personal injury action was settled during trial. Granites general insurer paid its maximum policy, $1 million, in claims while Verizon contributed $875,000. However, Verizons indemnification claims were left unsettled as against Granite, who had already exhausted its general insurance policy. Granite then sought to invoke its umbrella policy purchased through defendants Distinguished Programs Insurance Brokerage LLC and Distinguished Star Contractors RPG, LLC, and issued by defendant Markel American Insurance Company.

On January 6, 2003, Distinguished notified Markel of the underlying Vigilante/Jenkins claim. On November 30, 2005, two years after initial notification, Markel disclaimed coverage of the Granite claim. On January 9, 2007, Granite commenced this action seeking payment under the umbrella policy of $875,000 for the underlying Vigilante/Jenkins claim. Granite moved for summary judgment against all defendants.

The court held, The plaintiff has made a prima facie showing of entitlement to summary judgment by establishing that defendant Markel issued an umbrella policy to Granite for the time period including the underlying accident. Granite has provided the certificate of coverage evidencing itself as a named insured on defendant Distinguisheds umbrella policy, as well as cancelled checks evidencing the payment of the policys premium. Moreover, defendant Markel, in a fax dated February 18, 2004, blatantly recognized itself as the umbrella carrier for defendant Distinguished and further acknowledged that Granite was a named insured.

In opposition, the defendant Markel has failed to demonstrate the existence of a triable issue of fact as to whether plaintiff was covered under a umbrella policy issued by Markel.

As a result, Markels disclaimer of coverage given over two years after the aforementioned accident, and one year after initial notification of the claim, is unreasonable as a matter of law (Insurance Law 3420[d]; see First Financial Ins. Co. v. Jetco Contracting Corp., 1 NY3d 64, 70 [2003]; 79th Realty Co. v. Wausau Ins. Cos., 7 AD3d 507, 508 [2d Dept. 2004]; State v. Gen. Star Indemnity Corp., 299 AD2d 537, 539 [2d Dept. 2002].

Plaintiffs request in the complaint for attorneys fees is not substantiated by any contract or statute indicating that plaintiff shall receive attorneys fees from defendants.

Granites motion for summary judgment against the brokers was denied.

Comment: I would love to know what Markels explanation was for waiting two years to disclaim, and what their attorneys argued in opposition to plaintiffs motion for summary judgment. If any of the attorneys involved in this case care to comment, Ill print it.

Granite Avenue Utilities Corp. v. Markel American Ins. Co., NYLJ 08/14/07 (Supreme Court, Richmond County) (Index no. 100087/07) (McMahon, j)