Hanover Ins. Co. v. Weirfield Coal Inc.

ADDITIONAL CASES Penn-Star Insurance Company, Counterclaimant v. Hanover Insurance Company, Counterclaim Defendant Penn-Star Insurance Company, Cross-Complainant v. Weirfield Coal, Inc., Cross-Defendant Penn-Star Insurance Company, Third-Party Plaintiff v. Markel Insurance Company, et al., Third-Party Defendants MEMORANDUM DECISION AND ORDER   This declaratory judgment action stems from a complex insurance dispute among several different insurance carriers seeking to determine which insurance policy — if any — is operative for a state court personal injury action. On August 2, 2019, Hanover Insurance Company filed a complaint seeking a declaration that it has no obligation to indemnify or defend the underlying state court action. (ECF Nos. 2-3.) On September 11, 2019, Penn-Star Insurance Company (“Penn-Star”) answered and filed a third-party complaint against other insurers not originally named in this action seeking a declaration that it has no obligation to indemnify or defend the underlying action. (ECF Nos. 20-21.) On January 6, 2020, one of the third-party defendants, Markel Insurance Company (“MIC”), moved to dismiss Penn-Star’s third-party complaint, and Penn-Star opposed. (ECF Nos. 62-64.) For the reasons that follow, MIC’s motion to dismiss is granted in its entirety. BACKGROUND I. Procedural History On April 8, 2016, Katherine and Marvin Carbajal filed a personal injury action in Kings County Supreme Court, both individually and on behalf of their son, M.C., in connection with the family’s alleged exposure to coal pollutants released by defendant Weirfield Coal’s coal distribution business in Brooklyn (the “Carbajal Action”). See Carbajal v. Weirfield Coal, et al., Ind. No. 505469/2016 (N.Y. Sup. Ct. 2016) (ECF No. 62-3). At the time, the Carbajals lived on the same street as Weirfield Coal’s coal sale, storage and distribution facility. (ECF No. 62-3 10.) In their complaint, they allege that Weirfield Coal and its management company, Poma Realty, exposed them to toxic fugitive coal dust, (id.

25-47), and that Ms. Carbajal was exposed to these pollutants during her pregnancy, which caused her son to develop a congenital heart defect and other serious medical conditions requiring ongoing treatment and care. (Id.