J. PAUL OETKEN, United States District Judge
In this declaratory-judgment action brought pursuant to 28 U.S.C. § 2201, Plaintiff United Specialty Insurance Company (United) seeks a declaration that an insurance policy it issued to Defendant Premier Contracting of New York, Inc. (Premier) does not require United to defend or indemnify Premier or its owner, Defendant Michael T. Rich, Jr., in connection with a New York state-court action that has been filed against Premier, Rich, and others by Defendant Marlen J. Garcia Rodriguez. (Dkt. No. 5 at 11.) United also seeks a declaration that it is entitled to recoup from Defendants Premier and Rich the costs it has thus far incurred in defending the state-court action. (Id. ; see also Dkt. No. 27 at 1.) United has moved for summary judgment against all three Defendants (Dkt. No. 24), and Defendants Premier and Rich have filed a cross-motion for summary judgment against United (Dkt. No. 37). For the following reasons, Uniteds motion for summary judgment is granted, and Premier and Richs cross-motion is denied.
I. Background
A. Factual Background
This case asks whether Plaintiff United bears any contractual duty to defend or indemnify Defendants Premier and Rich in a state-court tort action filed against them by Defendant Marlen Rodriguez after the death of her brother, Jorge Alfonso Garcia Rodriguez, in a September 26, 2015 workplace accident (the Rodriguez Action ). (See Dkt. No. 26-9 ¶¶ 3, 206-08.) The Court first details the relevant provisions of the insurance contract between United and Premier, before describing the evidence surrounding the events of September 26, 2015, and outlining the relevant progress of the Rodriguez Action. Unless otherwise noted, the following facts are all undisputed.
1. The Insurance Contract
Premier, along with its executive officers and directors, is covered by a United-issued general-liability insurance policy (the Policy) that spans a policy period of September 30, 2014 to September 30, 2015. (Dkt. No. 47 ¶ 1; Dkt. No. 55 ¶ 32; Dkt. No. 26-8 at 4, 23.) As relevant here, the Policy generally requires United to (1) pay those sums that Premier becomes legally obligated to pay as damages because of bodily injury suffered during the policy period and (2) defend Premier against any suit seeking those damages. (Dkt. No. 26-8 at 15.)
Uniteds duties, though, are limited by two pertinent exclusions. First, United has no obligations with respect to the injuries of employee[s] of [Premier], where those injuries aris[e] out of and in the course of ... [e]mployment by [Premier]; or ... [p]erforming duties related to the conduct of [Premiers] business. (Dkt. No. 47 ¶ 2; Dkt. No. 26-8 at 74.) Second, United has no obligations with respect to the injuries of [a]ny independent contractor or the employee of any independent contractor while such independent contractor or their employee is working on behalf of [Premier]. (Dkt. No. 47 ¶ 3; Dkt. No. 26-8 at 76.)
2. The Events of September 26, 2015
On September 26, 2015, Jorge Rodriguez was working on a demolition project at a property owned by Leggett Avenue Property LLC (Leggett) when he suffered a fatal fall from an elevated height. (Dkt. No. 25-1 at 0037-0038; Dkt. No. 47 ¶ 7; Dkt. No. 26-10 ¶ 3.)
Days later, on September 29, 2015, the U.S. Department of Labors Occupational Safety and Health Administration (OSHA) inspected the worksite where Jorge Rodriguez had fallen. (Dkt. No. 47 ¶ 10; Dkt. No. 25-1 at 0001.) The investigator identified Premier as the employer at the site (Dkt. No. 25-1 at 0034, 0037, 0040) and determined that the accident had occurred while Premier employees, including Jorge Rodriguez and Defendant Rich, Premiers owner and president at the time, were demolishing a metal structure (Dkt. No. 25-1 at 0037-0038; see also Dkt. No. 47 ¶ 11). After the inspection, OSHA issued a citation and penalties against Premier, which OSHA characterized as the responsible employer. (Dkt. No. 25-1 at 0007; Dkt. No. 47 ¶ 13.)
Meanwhile, the New York State Workers Compensation Board (the WC Board) took a different view-at least initially-of the employment relationship between Jorge Rodriguez and Premier. At a July 17, 2017 hearing, a WC Board judge found that Jorge Rodriguez had not been working for Premier at the time he suffered his work related injury, but instead had been employed by Metal Depot Corp., a company that the WC Board characterized as Premiers Sub Contractor on the site. (Dkt. No. 47 ¶ 19; Dkt. No. 26-12.) Because Metal Depot was uninsured, though, the WC Board concluded that Premier, as the General Contractor, was responsible under state law, see N.Y. Workers Comp. Law § 56, for any workers compensation payments owed to Jorge Rodriguezs estate. (Dkt. No. 47 ¶¶ 19-20; Dkt. No. 26-12.)
The WC Board, though, later reversed course in an August 2, 2018 decision. (Dkt. No. 61-1.) Acknowledging that it had not had the benefit of OSHAs findings when it initially considered Jorge Rodriguezs case, it rescinded its earlier finding that Metal Depot had been the employer at the accident site and instead found that [Premier] [was] the proper employer based on [its] direct employment of Jorge Rodriguez. (Id. at 4.) Accordingly, the WC Board retroactively modified its earlier decision to reflect this changed understanding. (Id. )
Finally, as part of this litigation, Defendant Rich has submitted a sworn statement that reflects his own view of the events of September 26, 2015. (Dkt. No. 55 ¶ 35; Dkt. No. 46.) Consistent with the OSHA and WC Board findings, Rich acknowledges that Premier had been working at the Leggett property at the time of the accident, cleaning and removing debris and structures. (Id. ) But to the extent that Metal Depot was also present, Rich maintains that it was neither acting as an independent contractor of Premier nor working on the site on behalf of Premier. (Id. ) In other words, Rich contends, Premier did not contract or subcontract with Metal Depot to do any work on September 26, 2015 at the Leggett property. (Id. )
3. The Rodriguez Action
On April 3, 2017, Defendant Marlen Rodriguez, as administratrix of Jorge Rodriguezs estate, filed a lawsuit against Defendants Premier and Rich, as well as Leggett, Metal Depot, and others in the Bronx County Supreme Court. (Dkt. No. 47 ¶ 5; Dkt. No. 26-9.) According to Marlen Rodriguezs complaint, each of the state-court defendants acted as Jorge Rodriguezs employer at the time of the accident and was therefore responsible for the alleged negligence and labor-law violations that purportedly caused Jorge Rodriguezs death. (Dkt. No. 26-9 ¶¶ 197-204, 215, 224.)
Sometime after the Rodriguez Action was filed, United learned of the suit. According to Premier, it notified United of the action by way of a claim notice dated April 18, 2017. (Dkt. No. 55 ¶ 36; Dkt. No. 38-1.) But Hal Thompson, the claims attorney handling the Rodriguez Action on behalf of United, has testified that United did not receive this notice right away. (Dkt. No. 53 ¶¶ 3-7.) Instead, Thompson contends, the notice went first to Am WINS Insurance Brokerage of California, LLC (Am WINS), a company United has retained to ascertain[ ] and ... report[ ] facts related to claims, and that Am WINS did not transmit the notice to United until May 4, 2017. (Dkt. No. 53 ¶¶ 5-6, 8; Dkt. No. 53-2.) Once United did receive notice, though, Thompson, in his own account, immediately began to investigate by calling Defendant Rich. (Dkt. No. 29 ¶ 6.) Thompsons contemporaneous notes of this May 4, 2017 call indicate that Rich admitted that Jorge Rodriguez had been working for Premier on the day of the accident. (Dkt. No. 29 ¶¶ 6-8; Dkt. Nos. 29-1, 29-2.)
Once Thompson had concluded his investigation, United sent Premier a May 17, 2017 letter agreeing to defend the Rodriguez Action under a partial disclaimer of coverage. (Dkt. No. 47 ¶ 21; Dkt. No. 53 ¶¶ 9-10; Dkt. No. 53-3.) Specifically, the letter noted Richs admission to Thompson that Mr. [Jorge] Rodriguez was an employee of Premier (Dkt. No. 53-3 at 1) and went on to state Uniteds position that [i]f [Jorge] Rodriguez was an employee who was working on behalf of Premier at the time of the accident, neither Premier nor any other individual or entity claiming coverage under [the Policy] enjoyed any coverage for the Rodriguez accident (Dkt. No. 47 ¶ 22; Dkt. No. 53-3 at 4). In the alternative, the letter also stated that [i]f [Jorge] Rodriguez were determined to be an employee of an independent contractor hired by Premier, then there would be no coverage for Premier or any other individual or entity claiming coverage under [the Policy]. (Dkt. No. 47 ¶ 23; Dkt. No. 53-3 at 5.) Thus, although United agreed to defend the Rodriguez Action, it reserv[ed] its right to withdraw from providing coverage ... and to seek reimbursement for costs incurred should it be determined there is no coverage. (Dkt. No. 53-3 at 11.)
Thereafter, on June 16, 2017, United sent Premier a follow-up letter clarify[ing] [its] coverage position as to the Rodriguez Action. (Dkt. No. 38-2 at 2.) In particular, United made clear that it would not provide a defense for every state-court defendant but instead would do so for only those defendants, including Defendant Rich, who were Premier employees and who could therefore potentially invoke the Policy. (Id. ) The letter reiterated, though, that Uniteds coverage position as set forth in the earlier, May 17, 2017 letter remain[ed] unchanged. (Id. )
Having thus staked out its position, United began to defend the Rodriguez Action on behalf of Premier and Rich. On June 27, 2017, Uniteds chosen counsel filed an answer to the complaint, in which it was admitted that Premier had been Jorge Rodriguezs employer at the time of the accident. (Dkt. No. 47 ¶ 9; Dkt. No. 26-11 ¶ 29; see also Dkt. No. 26-9 ¶ 199; Dkt. No. 56 at 12.) But Premier soon grew wary that Uniteds reservation of rights could create a conflict of interest, and on October 5, 2017, Premier, through its own chosen counsel, requested that the counsel chosen by United cease work on the Rodriguez Action. (Dkt. No. 55 ¶ 39; Dkt. No. 38-3.) On October 18, 2017, United agreed to honor this request by withdrawing its counsel from the Rodriguez Action. (Dkt. No. 55 ¶ 40; Dkt. No. 38-4.)
B. Procedural History
United initiated this action on August 29, 2017, by filing a complaint against Defendants Premier, Rich, and Marlen Rodriguez. (Dkt. No. 1.) According to the complaint, the Policy does not entitle Defendants to have United provide a defense or indemnification in the Rodriguez Action, and United seeks a declaration to that effect from this Court pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. (Dkt. No. 5 at 11.) In addition, United asks this Court to declare that United is entitled to recoup from Defendants Premier and Rich the costs it has incurred in defending the Rodriguez Action thus far. (Id. ; see also Dkt. No. 27 at 1.)
Defendants Premier and Rich answered the complaint on November 27, 2017 (Dkt. No. 13), and Defendant Marlen Rodriguez answered the complaint and interposed crossclaims against Premier and Rich on December 15, 2017 (Dkt. No. 17). Broadly speaking, these crossclaims seek indemnification from Premier and Rich for any liability Marlen Rodriguez might incur as a result of Uniteds declaratory-judgment claims. (Dkt. No. 17 ¶¶ 60-64.) Premier and Rich answered the crossclaims on January 8, 2018 (Dkt. No. 18), and the case thereafter proceeded to discovery (see Dkt. No. 20).
On April 26, 2018, about a month before fact discovery was due to end, United moved for summary judgment. (Dkt. No. 23.) On May 17, 2018, Defendants opposed Uniteds motion (Dkt. Nos. 36, 41), and Defendants Premier and Rich filed a cross-motion for summary judgment against United, seeking a declaration that United is obliged to defend them in the Rodriguez Action and seeking reimbursement from United for the costs they have incurred in defending the instant suit (Dkt. No. 37). Briefing is complete on Uniteds motion and Premier and Richs cross-motion (Dkt. Nos. 54, 56-57), and this Court now considers the merits of those motions.
II. Legal Standard
Under Federal Rule of Civil Procedure 56, a summary judgment motion must be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. In considering such a motion, the Court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that partys favor. Jeffreys v. City of New York , 426 F.3d 549, 553 (2d Cir. 2005). If the evidence, so construed, is such that a fair-minded jury could return a verdict for the [non-moving party], then summary judgment is inappropriate. Id. (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). But once the movant has carried its initial burden ... of demonstrating the absence of a genuine issue of material fact, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 585 n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), it falls to the non-moving party to do more than simply show that there is some metaphysical doubt as to the material facts, id. at 586, 106 S.Ct. 1348. Instead, that party must offer some hard evidence showing that its version of the events is not wholly fanciful. DAmico v. City of New York , 132 F.3d 145, 149 (2d Cir. 1998).
III. Discussion
United argues that it is entitled to summary judgment because, on any reasonable view of the record, the Rodriguez Action falls into one of the Policys coverage exclusions. (Dkt. No. 27 at 13-20.) And, United maintains, because the May 17, 2017 letter in which it initially agreed to defend Premier and Rich reserved its recoupment rights, it is entitled under New York law to recoup the defense costs it has incurred in connection with that action. (Dkt. No. 27 at 22-23.)
Defendants Premier and Rich, however, argue that they are the ones entitled to summary judgment. In their view, no cited coverage exclusion applies to the Rodriguez Action. (Dkt. No. 48 at 12-15.) Furthermore, they contend, even if an exclusion did apply, United has waived its opportunity to disclaim coverage because its efforts to do so were untimely as a matter of law. (Dkt. No. 48 at 11-12.) And to top it all off, they conclude, United has cast them in a defensive posture by filing the instant litigation and so bears an obligation under the Policy to indemnify them for their costs in defending this suit. (Dkt. No. 48 at 15-16.)
Defendant Marlen Rodriguez, for her part, makes a more limited argument. She takes no position on whether the undisputed facts establish that a coverage exclusion applies (or does not apply). Instead, she simply argues that it is impossible on the basis of the present record to conclude as a matter of law that Uniteds disclaimer letter was timely (or was untimely) and that summary judgment for any party is therefore inappropriate at this stage. (Dkt. No. 36 at 2-5.)
The Court first considers whether the undisputed facts establish as a matter of law that the Rodriguez Action falls into-or does not fall into-a coverage exclusion. The Court next asks whether the undisputed facts establish as a matter of law that United timely disclaimed-or failed to timely disclaim-coverage. Finally, the Court turns to the question of recoupment.
A. The Policys Coverage Exclusions
As explained above, the Policy presumptively requires United to defend or indemnify Premier and Rich in the Rodriguez Action unless it can be determined that Jorge Rodriguez was, at the time of his accident, working as an employee of [Premier] (Dkt. No. 26-8 at 74) or as the employee of any independent contractor doing work for Premier (Dkt. No. 26-8 at 76).
Defendants Premier and Rich contend that the summary judgment record establishes conclusively that neither exception applies. First, they argue, the WC Board-at least initially-found that Jorge Rodriguez was an employee of Metal Depot, not Premier, at the time of his accident. (See Dkt. No. 48 at 12-14; Dkt. No. 26-12.) And, they go on, Rich has attested in a sworn statement that Metal Depot was not working as Premiers independent contractor at the time of Jorge Rodriguezs fall. (See Dkt. No. 48 at 14-15; Dkt. No. 46.)
The Court is wholly unpersuaded. As for the identity of Jorge Rodriguezs employer, Premier and Rich entirely disregard overwhelming evidence that the employer was Premier-evidence that includes not only OSHAs findings (Dkt. No. 25-1 at 0007) and Hal Thompsons contemporaneous memorialization of Richs own alleged admissions (Dkt. Nos. 29-1, 29-2), but also the WC Boards later disavowal of the very finding that forms the sole basis for Premier and Richs contention that Jorge Rodriguez was an employee of Metal Depot (Dkt. No. 61-1). And as for the relationship between Premier and Metal Depot, Premier and Rich conveniently forget that the very WC Board opinion they otherwise describe as binding (Dkt. No. 48 at 13) found that Metal Depot was Premiers Sub Contractor at the relevant time (Dkt. No. 26-12). At a minimum, then, a reasonable juror could resolve either of these points in Uniteds favor.
The Court therefore next considers Uniteds position that, beyond not being entitled to summary judgment, Premier and Rich have failed even to raise a genuine factual dispute that is material to the question of whether the Rodriguez Action falls into a coverage exclusion. First, United argues that there is no genuine dispute over whether Jorge Rodriguez was working as Premiers employee at the time of his accident. (Dkt. No. 27 at 13-17). Second, United argues that even if a reasonable juror could find that Jorge Rodriguez was an employee of Metal Depot at the relevant time, then there is no genuine dispute over whether Metal Depot was working as Premiers independent contractor at that time. (Dkt. No. 27 at 17-20.)
The Court agrees with United on the first point and so need not consider the second. As explained above, virtually every piece of evidence in the record that identifies Jorge Rodriguezs employer identifies it as Premier. And the lone exception-the initial WC Board opinion-has since been overturned. Certainly, that initial opinion may well have been based on evidence that could lead a reasonable juror to conclude that Jorge Rodriguezs employer was Metal Depot. But Premier and Rich have not produced any such underlying evidence as part of this litigation. Indeed, the only affirmative evidence Premier and Rich have introduced regarding the events of September 26, 2015-Richs sworn statement-is conspicuously silent on the identity of Jorge Rodriguezs employer. Nor does Richs statement dispute Hal Thompsons testimony that Rich informed Thompson in a May 4, 2017 phone call that Premier had been Rodriguezs employer on the date of Rodriguezs accident. (Dkt. No. 29 ¶ 6.) Given that Premier and Rich, as the alleged employers, are in a unique position to deny the existence of an employment relationship between Jorge Rodriguez and Premier if no such relationship in fact existed, their failure to do so is striking. Cf. In re 650 Fifth Ave. & Related Props. , 830 F.3d 66, 93 n.25 (2d Cir. 2016) (acknowledging that although a court may not draw negative inferences against a nonmoving party on a summary judgment motion, that partys failure to offer testimony that would support its position can leave the movants contrary showing undisputed).
In sum, then, the Court concludes that Jorge Rodriguezs status as Premiers employee at the time of his accident is not subject to genuine dispute. Consequently, the Rodriguez Action falls into a coverage exclusion, and the Policy, without more, therefore does not require United to defend or indemnify Premier and Rich in connection with that action.
B. Uniteds Disclaimer of Coverage
As the Court has now concluded, no genuine dispute exists as to whether the Rodriguez Action falls within a coverage exclusion. But United could still be obligated to defend or indemnify Defendants Premier and Rich if it failed to timely disclaim coverage. Under New York law, where an insurer seeks to deny coverage under a New York-issued policy for death or bodily injury arising out of an accident occurring in New York, the insurer shall give written notice as soon as is reasonably possible of such ... denial of coverage to the insured and the injured person or any other claimant. N.Y. Ins. Law § 3420(d)(2) ; see also Markevics v. Liberty Mut. Ins. Co. , 97 N.Y.2d 646, 648-49, 735 N.Y.S.2d 865, 761 N.E.2d 557 (2001) ([A] timely disclaimer ... is required when a claim falls within the coverage terms but is denied based on a policy exclusion.).
An insurers duty to provide a timely disclaimer begins to run from the time that the insurer has sufficient information to disclaim coverage in good faith. Webster ex rel. Webster v. Mt. Vernon Fire Ins. Co. , 368 F.3d 209, 216 (2d Cir. 2004). But an insurer may not dawdle in acquiring such information: any investigation into a notice of claim must be prompt, thorough, and diligent. Liberty Ins. Underwriters Inc. v. Great Am. Ins. Co. , No. 09 Civ. 4912, 2010 WL 3629470, at *9 (S.D.N.Y. Sept. 17, 2010) (quoting U.S. Underwriters Ins. Co. v. City Club Hotel, LLC , 369 F.3d 102, 107 (2d Cir. 2004) ). Given the context-specific nature of an investigations reasonableness, timeliness almost always presents a factual question, requiring an assessment of all relevant circumstances surrounding a particular disclaimer. Continental Cas. Co. v. Stradford , 11 N.Y.3d 443, 449, 871 N.Y.S.2d 607, 900 N.E.2d 144 (2008).
But although cases in which the reasonableness of an insurers delay may be decided as a matter of law are exceptional, id. , courts have adopted a rule of thumb that disclaimers made within 30 days of notice are treated as timely, whereas disclaimers beyond the 30-day point are generally treated as untimely unless the insurer establishes a suitable justification, Century Sur. Co. v. EM Windsor Constr. Inc. , No. 16 Civ. 4196, 2017 WL 5952706, at *9 (S.D.N.Y. Nov. 29, 2017). Compare, e.g., Liberty Ins. Underwriters , 2010 WL 3629470, at *9 (holding an insurers disclaimer issued twenty-eight days after its receipt of a claim notice reasonably timely as a matter of law), with, e.g., First Fin. Ins. Co. v. Jetco Contracting Corp. , 1 N.Y.3d 64, 70, 769 N.Y.S.2d 459, 801 N.E.2d 835 (2003) (holding an unexplained delay of forty-eight days following receipt of a claim notice to be unreasonable as a matter of law). Of course, this practice does not represent a bright-line rule, Erie Painting & Maint., Inc. v. Ill. Union Ins. Co. , 876 F.Supp.2d 222, 231 (W.D.N.Y. 2012), such that a one-month delay is reasonable even in the absence of evidence that the insurer conducted any investigation at all, see id. at 232. But where an insurer does need to mount[ ] an investigation to determine whether it could disclaim coverage, the Second Circuit has deemed delays of up to twenty-two days reasonable as a matter of law. Webster , 368 F.3d at 217.
Here, Defendants Premier and Rich first submitted their notice of claim on April 18, 2017. (Dkt. No. 55 ¶ 36; Dkt. No. 38-1.) The evidence shows that Am WINS, Uniteds insurance broker, forwarded that notice to United on May 4, 2017. (Dkt. No. 53 ¶¶ 5-8; Dkt. No. 53-2.) United then issued its disclaimer on May 17, 2017, twenty-nine days after the claim notice was submitted (Dkt. No. 53-3), and followed up with a letter clarify[ing] [its] coverage position on June 16, 2017, fifty-nine days after the claim notice was submitted (Dkt. No. 38-2).
Defendants Premier and Rich argue that this chain of events establishes that Uniteds disclaimer was untimely as a matter of law for two reasons. (Dkt. No. 48 at 11-12.) First, citing to West 16th Street Tenants Corp. v. Public Service Mutual Insurance Co. , 290 A.D.2d 278, 736 N.Y.S.2d 34 (1st Dept 2002), they claim that delays as short as 30 days ... render disclaimers untimely and invalid, and that a delay of twenty-nine days is presumably just as bad (Dkt. No. 48 at 12). But West 16th Street Tenants Corp. , which held a thirty-day delay in disclaiming coverage to be unreasonable as a matter of law, concerned a situation in which the basis for disclaimer was obvious from the face of the notice of claim, such that the insurer had no need to conduct an investigation before determining whether to disclaim. W. 16th St. Tenants Corp. , 736 N.Y.S.2d at 35. Given Uniteds need in this case to look into the employment relationship between Jorge Rodriguez and Premier, West 16th Street Tenants Corp. does not govern here.
Second, Defendants Premier and Rich argue that even if the May 17, 2017 letter could be deemed timely, that letter disclaimed coverage only with respect to Premier. (Dkt. No. 48 at 11.) In Premier and Richs view, it was not until the June 16, 2017 letter that United first disclaimed coverage as to Rich as well. (Id. ) This argument, though, is belied by the letters themselves. The May 17, 2017 letter-which, indeed, was addressed to Rich-explicitly stated that United disclaimed coverage both as to Premier and as to any other individual or entity that may claim coverage under [the Policy]. (Dkt. No. 53-3 at 4.) The June 16, 2017 letter, in contrast, did not purport to disclaim coverage with respect to Rich above and beyond what the May 17, 2017 letter had already done. Quite to the contrary, the June 16, 2017 letter clarified that the Policy does afford coverage to Rich, subject, of course, to the coverage position ... set forth in [the May 17, 2017] letter, which remain[ed] unchanged. (Dkt. No. 38-2 at 2 (emphasis added).)
Accordingly, the Court finds no basis for concluding that Uniteds disclaimer, whether as to both Premier and Rich or as to Rich alone, was untimely as a matter of law.
The Court turns next to Uniteds inverse claim that the undisputed facts actually establish as a matter of law that the May 17, 2017 letter was timely. (Dkt. No. 54 at 2-6.) First and foremost, the parties dispute whether the timeliness of Uniteds disclaimer must be measured from April 18, 2017, when Am WINS received Premier and Richs notice of claim, or from May 4, 2017, when United allegedly first received that notice from Am WINS. (Dkt. No. 56 at 6-7; Dkt. No. 57 at 5-6.) But even assuming, favorably to Defendants, that April 18, 2017, is the relevant date, Uniteds May 17, 2017 disclaimer nonetheless falls within the thirty-day window that courts routinely hold, as a matter of law, to be a reasonable timeframe for conducting an investigation. See Century Sur. Co. , 2017 WL 5952706, at *9. And although Defendants Premier and Rich voice skepticism regarding Hal Thompsons sworn statement that he needed until May 16, 2017, the day before United sent its disclaimer, to finish investigating (see Dkt. No. 53 ¶ 10; Dkt. No. 57 at 6), they do no more than raise the sort of metaphysical doubt that is insufficient to create a genuine factual dispute, Matsushita , 475 U.S. at 586, 106 S.Ct. 1348.
Defendant Marlen Rodriguez maintains, however, that the lack of evidence rebutting Uniteds account of its own investigation should not be held against Defendants. This is because, she argues, United filed its summary judgment motion prior to the close of discovery. (Dkt. No. 36 at 4-5.) Moreover, according to a status letter submitted by the parties on May 29, 2018, United refused during discovery to turn over certain claim files that might, Defendants believe, contain evidence that would create a factual dispute as to the reasonableness of Uniteds investigation. (Dkt. No. 51 at 4-5.) But Defendants overlook the fact that they did not bring this discovery dispute to the Courts attention until after the May 21, 2018 close of fact discovery. (See Dkt. No. 20.) Nor at any point prior to the close of fact discovery did Defendants seek an extension of the discovery deadlines or ask that the Court defer resolution of Uniteds motion. Defendants cannot now rely on their own inaction during discovery as a basis for defeating Uniteds motion for summary judgment.
Finally, Defendant Marlen Rodriguez speculates that even if the undisputed facts show that United disclaimed liability within a reasonable time after learning of the Rodriguez Action, United has presented no evidence as to when it first learned of the underlying September 26, 2015 accident. (Dkt. No. 36 at 4.) But Hal Thompsons sworn testimony maintains that United first learned about Rodriguezs accident when it received Premier and Richs notice of claim from Am WINS on May 4, 2017 (Dkt. No. 53 ¶ 7), and no Defendant points to any evidence that would subject Thompsons statement to genuine dispute.
All told, then, the undisputed facts establish that United disclaimed liability no more than twenty-nine days after it first learned of the Rodriguez Action and the underlying accident, and that it spent that time processing and investigating Premier and Richs claim. Because courts have concluded as a matter of law that thirty days is a reasonable amount of time within which to perform those tasks, United has established that its disclaimer was timely as a matter of law. Therefore, because the undisputed facts establish that the Rodriguez Action falls into one of the Policys coverage exclusions and that United disclaimed coverage in a timely manner pursuant to that exclusion, the Court concludes that United is entitled to summary judgment on its claim that it bears no defense or indemnification obligations in connection with the Rodriguez Action.
C. Recoupment
Where an insurer advances defense expenses to its insured but explicitly advise[s] the named insured that it [is] reserving its right to seek reimbursement against the named insured in the event it is determined the insurer ha[s] no defense obligation, and the insured [does] not object to the reservation, Maxum Indem. Co. v. VLK Constr., Inc. , No. 14 Civ. 1616, 2016 WL 4703654, at *6 (E.D.N.Y. Sept. 8, 2016) (quoting Century Sur. Co. v. Franchise Contractors, LLC , No. 14 Civ. 277, 2016 WL 1030134, at *5 (S.D.N.Y. Mar. 10, 2016) ), New York law allows the insurer to recoup those expenses in the event it is ultimately determined no coverage was afforded, id. (quoting Axis Reinsurance Co. v. Bennett , No. 07 Civ. 7924, 2008 WL 2600034, at *2 (S.D.N.Y. June 27, 2008) ).
Here, the Court has concluded that United has no defense obligations in connection with the Rodriguez Action. Further, Uniteds May 17, 2017 disclaimer letter to Premier and Rich explicitly reserv[ed] [Uniteds] right ... to seek reimbursement for costs incurred should it be determined there is no coverage for the Rodriguez Action. (Dkt. No. 53-3 at 11.) Finally, Premier and Rich have presented no evidence that they expressly refuse[d] to consent to the reservation. Maxum Indem. Co. v. A One Testing Labs., Inc. , 150 F.Supp.3d 278, 284 (S.D.N.Y. 2015). Of course, Premier and Rich argue that, in the context of the instant litigation, they now object to Uniteds reservation. (Dkt. No. 48 at 16-17.) Unsurprisingly, though, they offer no legal authority that would suggest that an insured may sit silently while an insurer incurs expenses on behalf of the insured under a reservation of rights and then blindside the insurer with an effective objection only after the insurer has run up a considerable bill.
Accordingly, the Court concludes that United is entitled to summary judgment on its claim that it has a right to recoup the defense expenses it has thus far incurred in connection with the Rodriguez Action.
IV. Conclusion
For the foregoing reasons, Uniteds motion for summary judgment is GRANTED and Defendants Premier and Richs cross-motion for summary judgment is DENIED.
Because the Courts resolution of the cross-motions for summary judgment renders moot Defendant Marlen Rodriguezs crossclaims, those crossclaims are dismissed.
The Clerk of Court is directed to close the motion at Docket Number 37 and to close this case.
SO ORDERED.
Defendant Marlen Rodriguez has not specifically controverted any of the facts laid out in the statement of undisputed facts United submitted pursuant to Local Rule 56.1 in connection with its summary judgment motion. (See Dkt. No. 54 at 2.) She is therefore deemed [to have] admitted those facts to the extent that they find support in the summary judgment record. Giannullo v. City of New York , 322 F.3d 139, 140 (2d Cir. 2003).
For the purposes of these exclusions, employee is defined to include a leased worker, a temporary worker and a volunteer worker. (Dkt. No. 26-8 at 32; see also Dkt. No. 47 ¶ 4.)
A subsequent proposed decision of the WC Board listed Premier as Jorge Rodriguezs Employer (Dkt. No. 47 ¶ 20; Dkt. No. 26-13), but the WC Board later made clear that the employer should [have] be[en] listed as Metal Depot Corp. (Dkt. No. 55 ¶ 34; Dkt. No. 26-14).
Although the WC Boards August 2, 2018 decision did not form part of the summary judgment record at the time the parties motions were filed, United argues that this Court may take judicial notice of the decision. (Dkt. No. 61.) Defendants have made no argument to the contrary, and the Court agrees with United that the decision represents the sort of public filing as to which judicial notice is routinely taken. See, e.g., Svensson v. Securian Life Ins. Co. , 706 F.Supp.2d 521, 534 n.18 (S.D.N.Y. 2010) (The Court ... properly can take judicial notice of [a] Workers Compensation Board[ ] decision....).
There is some confusion over the date of Marlen Rodriguezs complaint. The complaint is dated March 26, 2015 (Dkt. No. 26-9 at 24), but that date is clearly incorrect, given that Jorge Rodriguezs death did not occur until September 2015, and the summons accompanying the complaint is dated March 26, 2017 (Dkt. No. 26-9 at 2). In any event, the Bronx County Clerk has stamped both summons and complaint with a filing date of April 3, 2017 (Dkt. No. 26-9 at 2, 4), and no party suggests that the precise date of the filing is material to this litigation.
United also initially sought to proceed against Luis and Carmine Sanzo, both of whom are named as defendants in the Rodriguez Action. (See Dkt. Nos. 5, 26-9.) All parties, however, have since voluntarily stipulated to the Sanzos dismissal from this litigation. (Dkt. No. 44.)
United also sought a stay of discovery pending resolution of its summary judgment motion. (Dkt. No. 27 at 23-25.) This Court granted the requested stay, but only after the window for fact discovery had already closed. (Dkt. No. 60.)
Defendants Premier and Rich, as well as United, expressly take the view that New York law governs the present dispute. (Dkt. No. 27 at 22; Dkt. No. 48 at 10.) Defendant Marlen Rodriguez offers no contrary view. The Court therefore follows the parties in applying New Yorks substantive law. See, e.g., Sahu v. Union Carbide Corp. , No. 04 Civ. 8825, 2012 WL 2422757, at *4 (S.D.N.Y. June 26, 2012) (applying New York law where no party raised any objection to its presumed applicability).
In addition to this evidence, United also points out that Premier and Rich admitted in their answer to the complaint in the Rodriguez Action that Premier was Jorge Rodriguezs employer at the relevant time. (See Dkt. No. 56 at 1; Dkt. No. 26-11 ¶ 29.) Premier and Rich respond that this admission, interposed by Uniteds hand selected counsel, is just further proof of [Uniteds] bad faith. (Dkt. No. 48 at 14.) But because the Court finds it unnecessary to rely on Premier and Richs purported state-court admission, the Court declines to decide how, if at all, the alleged conflict of interest-or Uniteds alleged failure to inform Premier and Rich that they had the right to reject Uniteds chosen counsel (see Dkt. No. 48 at 14; Dkt. No. 56 at 9-10)-bears on the evidentiary value of the admission.
Although United had, prior to the close of fact discovery, requested that discovery be stayed pending resolution of its summary judgment motion (Dkt. No. 24), the Court did not rule on that motion until after the time for fact discovery had already ended.
In light of this conclusion, the Court rejects Defendant Premier and Richs claim that United is required to indemnify them for the expenses they have incurred in connection with the instant suit.