A. Precedents Cited
1) Burden allocation: coverage first, exclusions second
The decision begins with the orthodox burden framework:
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County of Suffolk v Ironshore Indem., Inc. — cited for the principle that the insured bears the initial burden to show coverage, while the insurer bears the burden to prove an exclusion defeats coverage.
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Consoldated Edison Co. of N.Y. v Allstate Ins. Co. — reinforces that once an insured shows the loss arises from an “accident”/“occurrence,” the insurer must prove an exclusion applies.
These cases anchor the Second Department’s approach: Kedex had to show an “occurrence”; after that, Trisura had to demonstrate that exclusions clearly and comprehensively negated the defense obligation on the face of the underlying allegations.
2) The “exceedingly broad” duty to defend
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Mack-Cali Realty Corp. v NGM Ins. Co. — quoted for the proposition that the duty to defend is “exceedingly broad.”
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Regal Constr. Corp v National Union Fire Ins. Co. of Pittsburgh, PA — the foundational Court of Appeals authority used (via Mack-Cali) to describe the breadth of the defense duty.
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BP A.C. Corp. v One Beacon Ins. Group — cited for the “even potentially within the protection purchased” / “reasonable possibility of coverage” framing.
The court applied these precedents to treat the defense duty as allegation-driven: if the underlying pleadings could be read to fall within coverage, the insurer must defend—unless exclusions unmistakably foreclose coverage under every reasonable reading.
3) The insurer’s heavy burden when relying on exclusions
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Automobile Ins. Co. of Hartford v Cook — supplies the controlling standard: the insurer must show the complaint “solely and entirely” falls within exclusions and is “subject to no other interpretation.”
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Gem-Quality Corp. v Colony Ins. Co. — applied for the same “solely within exclusions” test, emphasizing the insurer’s burden at the defense stage.
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Grenadier Realty Corp. v RLI Ins. Co. and East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal — invoked for strict, narrow construction of exclusions.
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Essex Ins. Co v George E. Vickers, Jr., Enters., Inc. — underscores that if an exclusion could “even potentially” be inapplicable, the insurer must defend.
Using these authorities, the Second Department concluded Trisura did not carry its burden to defeat the defense obligation at summary judgment—because the exclusions depended on facts not conclusively established by the underlying pleadings or the record on the motion.
4) Defense versus indemnity: distinct inquiries
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One Reason Rd., LLC v Seneca Ins. Co., Inc. — cited for the core point that the duty to defend is broader than the duty to indemnify, and that factual issues may remain on indemnity even when a defense is owed.
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Mapfre Ins. Co. of N.Y. v Ferrall — cited for the principle that indemnity depends on whether the insured is liable for a covered loss.
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Matter of Progressive Dr. Ins. v Malone and Harleysville Ins. Co. v United Fire Protection, Inc. — used to support denial of indemnity where triable facts bear on exclusion application (here, demolition/construction scope and employment status).
5) Declaratory judgment procedure
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Lanza v Wagner — cited for the procedural directive that, in a declaratory judgment action, the court should remit for entry of a proper declaratory judgment (rather than leaving the outcome as a mere order).
B. Legal Reasoning
1) Prima facie coverage: an “occurrence” was shown
Kedex met its initial burden by submitting the policy and showing the claim involved “bodily injury” caused by an “occurrence,” defined as “an accident,” within the policy period. Critically, Kedex also submitted a letter from counsel for Trisura’s third-party administrator indicating that Ochoa’s bodily injury fell within the policy’s “occurrence” definition and thus triggered coverage.
On that record, the court held Kedex established prima facie that the underlying complaint alleged an “occurrence” within the policy’s insuring agreement, satisfying the first step under County of Suffolk v Ironshore Indem., Inc. and Consoldated Edison Co. of N.Y. v Allstate Ins. Co..
2) Why exclusions did not defeat the duty to defend at summary judgment
Trisura disclaimed based on multiple exclusions, but to avoid defending it needed to meet the demanding Automobile Ins. Co. of Hartford v Cook standard: the underlying allegations must fall “solely and entirely” within exclusions and permit “no other interpretation.”
The Second Department concluded Trisura failed to make that showing. The allegations (and record on the motion) did not conclusively establish the facts necessary to place the claim entirely within the exclusions. Because the exclusions could “even potentially” be inapplicable, Trisura’s duty to defend attached under BP A.C. Corp. v One Beacon Ins. Group and Essex Ins. Co v George E. Vickers, Jr., Enters., Inc.. The court therefore modified the order to grant a defense declaration.
3) Why indemnity could not be declared on this record
The court drew a sharp line between defense (allegation-based) and indemnity (liability and fact-based). Even with a defense owed, indemnity requires resolution of facts bearing on coverage and exclusions.
The court identified specific unresolved fact issues:
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Whether the work’s scope included demolition, which could trigger the construction exclusion; and
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Whether Ochoa was an employee of Kedex “within the meaning of the policy,” potentially triggering the employer’s liability and workers’ compensation exclusions.
Because Kedex, as the summary judgment movant, failed to eliminate these triable issues, the court affirmed denial of summary judgment as to indemnity, consistent with One Reason Rd., LLC v Seneca Ins. Co., Inc. and Mapfre Ins. Co. of N.Y. v Ferrall.