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NGM Insurance Co. v. Blakely Pumping, Inc.

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Argued: December 10, 2009

Before: McLAUGHLIN, KATZMANN, LYNCH, Circuit Judges.

NGM Insurance Company (“NGM”) appeals from a judgment of the United States District Court for the Southern District of New York (Young, J.) declaring that NGM is obligated to defend and indemnify Blakely Pumping, Inc. (“Blakely Pumping”), against liability arising out of an auto accident involving Brian Blakely (“Blakely”), an officer and employee of Blakely Pumping. Blakely Pumping had purchased an insurance policy and endorsement from NGM that covered liability arising out of the use of a “Hired Auto” or “Non-Owned Auto” — terms defined so as not to include an auto owned by an executive officer or employee of Blakely Pumping. The determinative question is whether these definitions constitute “exclusions” of coverage. If they do, NGM was required under New York Insurance Law § 3420(d)(2) to timely notify Blakely Pumping that it was disclaiming coverage based on a policy exclusion. On appeal, NGM argues that the district court erred in finding that the definitions were exclusions since Blakely’s auto could not qualify as a “Hired Auto” or “Non-Owned Auto” under any circumstances. For the reasons stated herein, we agree and reverse the district court’s judgment.

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