The defendants in this case are separately appealing an order and judgment from the Supreme Court of Kings County that granted the plaintiff’s motion for summary judgment and denied both of their cross motions for summary judgment. The order also declared that the defendants are required to defend and if necessary indemnify the plaintiff in an underlying personal injury case.
The declaratory judgment action comes from a personal injury action where two parents on the behalf of their three daughters sued the ACS and the Coalition for Hispanic Family Services. The complaint alleged that ACS initiated petitions to have the children removed from the home based on observation of blood in the stool of one of the children and the child’s positive test for an STD. The complaint further alleged that the children were removed from the home and placed them in foster care. The complaint states that the proceedings were protracted because of the prosecutions failure to comply with the orders made by the judge to produce lab reports, witnesses, and medical records.
The complaint raised four causes of action. The first cause of action alleged that the defendants tore the family asunder. The second cause of action stated that the ACS interfered with the plaintiff’s right to parent and caused the children to lose their parents. The third cause of action stated that removing the children from the home caused physical and emotional stress as well as pain and suffering. The final cause of action stated these actions resulted in malicious prosecution as well as conspiracy.
The city requested for defense and indemnification as an additional insured on the general liability policy. When this was denied they moved for a summary judgment requiring the current plaintiffs to defend and indemnify them. This summary judgment was granted.
Court Discussion and Decision
The court is reversing the order made in the Kings County Supreme Court. The court has read the policy in question and has determined that the defendant has the duty to defend the insured whenever the allegations of a complaint state a cause of action that gives rise to a reasonable possibility of recovery under the policy.
Both of the liability insurance policies in question provide additional insurance coverage that only applies in respect to liability that arises from the operation of the department.
When the underlying personal injury lawsuit is read there is no complaint made against the operation of the ACS. The complaint instead is in regard to the decisions that were made by the department to remove the children from the home including attempting to terminate parental rights and requiring supervised visitation with the children.
For these reasons, the court is finding in favor of the plaintiffs. The insurance companies do not have the responsibility to defend the insured in the underlying personal injury case.
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