2013 NY Slip Op 31890(U)
April 12, 2013
Supreme Court, New York County
Docket Number: 600805/2010
Judge: Debra A. James
In this declaratory judgment action, Tower alleges that coverage for its insured, the landlord, under its general liability policy is excluded by the assault exclusion for suits and claims arising out of fire at the insured's building which resulted in deaths and property damage.
Criminal charges are pending against an alleged arsonist (not the insured) for murder, assault and arson in connection with the setting of the fire.
The Court held that the outcome of the criminal charges is necessary for a determination as to whether the assault exclusion applies. Therefore the DJ action was stayed pending the resolution of the criminal case.
Comment: If the accused arsonist is convicted of murder and/or assault, it will be conclusive that the assault exclusion applies because, even if negligence is alleged, "where the complaint's negligence allegations could not survive except for the assault, those claims are deemed to have arisen from the assault and are thus subject to the assault and battery exclusion" (Metalios v Tower Ins. Co . of N .Y, 77 AD3d 471 [1st Dept 2010; McGinley v Odyssey Re, 15 AD3d 218 [lst Dept 2005] ). If the accused is not convicted for any reason, it does not necessarily mean that the incident did not arise out of an assault, but the insurer will have to prove it.