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Syvertsen v. Great American Insurance Company (N.Y.App.Div. 12/23/1999)
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Supreme Court12/23/1999
acity and that it specifies that no coverage will be provided for civil rights claims predicated upon activities taken "under color of state law" (42 USC ยง1983). Even if these acts were deemed to arise out of his individual conduct, regardless of his municipal function, we would still find no duty to defend since coverage is also excluded for "personal injury claimed by any person directly or indirectly related to the violation of any Civil Rights Act or Constitutional Rights".
Nor can we find error in the determination that by suing plaintiffs in their individual capacities rather than in their corporate identities, Royal did not have a duty to defend or indemnify them based upon its issuance of a commercial general liability policy to Suncrest Transportation Inc. and its corporate officers. As to its second policy to Suncrest, a commercial catastrophic liability policy with "VIP Shield Personal Catastrophic Liability Endorsements" naming plaintiffs as individually insured, its terms provide that coverage will be triggered only after the underlying insurance coverage had been determined to be applicable. As we have already determined that the underlying policy would not be applicable here, no duty to defend or indemnify plaintiffs can be found.
""' onclud as a matter of law that there is no possible factual or legal basis on which [these insurers] might eventually be held to be obligated to indemnify [the plaintiff] under any provision of the insurance polic ""' (Erdman v Eagle Ins. Co., 239 AD2d 847, 849, appeal dismissed, lv denied 90 NY2d 926, quoting Jubin v St. Paul Fire & Mar. Ins. Co., 236 AD2d 712, 714, quoting Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 424), we affirm the order and amended judgments of Supreme Court.
Mikoll, J.P., Mercure, Yesawich Jr. and Graffeo, JJ., concur.
ORDERED that the order and amended judgments are affirmed, with costs.
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