Aetna Casualty & Surety Co. v. Gigante
Court: Appellate Division of the Supreme Court of the State of New York; July 12, 1996; New York; State Appellate Court
Judgment affirmed with costs. Margaret Springer, as both an individual and the administratrix of Mark A. Howell's estate, initiated a wrongful death lawsuit against Michael Gigante, who fatally stabbed Howell during a stag party and was subsequently convicted of second-degree manslaughter and fourth-degree criminal possession of a weapon. The lawsuit alleges Howell’s death resulted from Gigante’s "negligent use of a knife" and his negligence and recklessness. Gigante was covered under a homeowner's insurance policy that included personal liability for accidents resulting in bodily injury, but excluded injuries that were expected or intended by the insured. Gigante sought a defense and indemnification from the insurer, which disclaimed coverage on the grounds that the stabbing did not constitute an "occurrence" under the policy, that the injury was "expected or intended," and that Gigante failed to provide timely notice of the incident. The court denied the insurer's motion for summary judgment but partially granted Springer’s cross-motion, ruling that the insurer has a duty to defend Gigante in the wrongful death action, while both parties were denied summary judgment on the indemnification issue. The court determined that the negligence claim in the wrongful death action is covered by the policy, as it pertains to accidental injury. Gigante's manslaughter conviction does not preclude the civil case from determining whether the death was "expected or intended." Furthermore, Gigante's conviction for criminal possession of a weapon does not legally establish that he "expected" or "intended" the injury. There are unresolved factual questions regarding whether Gigante provided timely notice to the insurer and whether the insurer gave timely notice of disclaimer to Gigante. The claim by Cobti’s Restaurant regarding its non-receipt of the disclaimer notice was supported only by its attorney's affirmation, lacking personal knowledge of the facts, thus failing to warrant summary judgment.