Motion for Child Support in E.E. Cruz & Company, Inc. v. Starr Surplus Lines Insurance Company| Trellis.Law

On June 08, 2020 a Motion-Secondary was filed involving a dispute between E.E. Cruz & Company, Inc., and Starr Surplus Lines Insurance Company, for Commercial - Insurance in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/28/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------X Index No.: 652321/2020
E.E. CRUZ & COMPANY, INC.,

Plaintiff,

-against-

STARR SURPLUS LINES INSURANCE COMPANY,

Defendant.
------------------------------------------------------------------X

DEFENDANT’S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... 3
PRELIMINARY STATEMENT ................................................................................................. 1
STATEMENT OF MATERIAL FACTS .................................................................................... 1
LEGAL STANDARD ................................................................................................................... 9
ARGUMENT ............................................................................................................................... 10
I. CRUZ’S CAUSES OF ACTION FOR DECLARATORY JUDGMENT AND BREACH OF
CONTRACT SHOULD BE DISMISSED BECAUSE THE LOSS IS NOT COVERED
UNDER THE POLICY............................................................................................................. 10
A. The Caisson Endorsement Applies to Preclude Coverage ................................................. 11
B. The Cost of Making Good Exclusion Applies to Preclude Coverage ............................... 17
C. The Policy does not Provide Coverage for Cruz’s Claimed “Impact Costs” .................... 18
II.CRUZ’S CAUSES OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF
GOOD FAITH AND FAIR DEALING SHOULD BE DISMISSED BECAUSE CRUZ
CANNOT SHOW STARR ACTED IN BAD FAITH ............................................................. 20
III.CRUZ’S CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION SHOULD BE
DISMISSED ............................................................................................................................. 22
IV.CRUZ’S CAUSE OF ACTION FOR VIOLATION OF GBL § 349 SHOULD BE
DISMISSED ............................................................................................................................. 23
CONCLUSION ........................................................................................................................... 25

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TABLE OF AUTHORITIES
Cases
6593 Weighlock Drive, LLC v. Springhill SMC Corp.,
71 Misc. 3d 1086, 147 N.Y.S.3d 386, 393-394 (N.Y. Sup. Ct., Onondaga Cty. 2021)................ 14

Alvarez v. Prospect Hosp.,
68 N.Y.2d 320, 324 (N.Y. App. Div., 1st Dep’t 1986)................................................................. 12

Broome Cnty. v. The Travelers Indem. Co.,
125 A.D.3d 1241, 6 N.Y.S.3d 300, 304 (2015) ............................................................................ 20

Clarke v. Travco Ins. Co.,
No. 13-CV-5140 (NSR), 2015 WL 4739978, at *6 (S.D.N.Y. Aug. 7, 2015) ............................. 14

Consol. Restaurant Operations, Inc. v. Westport Ins. Corp.,
No. 450839/2021, 2021 WL 4477692 at *1 (N.Y. Sup. Ct., New York Cty. 2021) .................... 14

Dawn Frosted Meats, Inc. v. Insurance Co. of North America,
99 A.D.2d 448 (1st Dept. 1984).................................................................................................... 23

Fourth St. Place v. Travelers Indem. Co.,
127 Nev. 957, 969 (2011) ............................................................................................................. 21

Hankook Tire America Corp. v. Samsung Fire & Marine Ins. Co., Ltd.,
No. 653948/15, 2021 WL 5908913, at *7 (N.Y. Sup. Ct. Dec. 03, 2021).................................... 23

Infostar Inc. v. Worcester Ins. Co.,
924 F. Supp. 25, 29 (S.D.N.Y. 1996)............................................................................................ 27

Laquila Constr. Inc. v. Travelers Indem. Co. of Illinois,
66 F.Supp.2d 543, 545 (S.D.N.Y.1999) ....................................................................................... 21

Michaels v. City of Buffalo,
85 N.Y. 2d 754, 757 (1995) .................................................................................................... 14, 20

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Miller v. Continental Ins. Co.,
40 N.Y.2d 675, 676, 389 N.Y.S.2d 565, 358 N.E.2d 258 (1976) ................................................. 15

O.K. Petroleum v. Travelers Indemnity Co.,
No. 09 CIV. 10273 (LMM), 2010 WL 2813804, at *5 (S.D.N.Y. July 15, 2010) ....................... 27

Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A.,
85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995) ..................................................... 27

Park Country Club of Buffalo, Inc. v. Tower Ins. Co. of .N.Y,
68 A.D.3d 1772 (N.Y. App. Div. 4th Dep’t 2009) ....................................................................... 13

Satispie, LLC v. Travelers Prop. Cas. Co. of Am.,
448 F. Supp. 3d 287, 294 (W.D.N.Y. 2020) ................................................................................. 23

Slattery Skanska Inc. v. American Home Assur. Co.,
67 A.D.3d 1, 14 (N.Y. App. Div. 1st Dep’t 2009) ........................................................................ 13

SSR II, LLC v. John Hancock Life Ins. Co. (U.S.A.),
37 Misc. 3d 1204(A), 964 N.Y.S.2d 63 (N.Y. Sup. Ct. New York Cty. 2012) ............................ 25

St. Paul Fire & Marine Ins. Co. v. Heath Fielding Ins. Broking Ltd.,
976 F. Supp. 198, 203-204 (S.D.N.Y. 1996) ................................................................................ 25

Stilianudakis v. Tower Ins. Co. of N.Y.,
68 A.D.3d 973, 974, 889 N.Y.S.2d 854 (2009) ............................................................................ 25

Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 731 N.E.2d 608 (2000) ....................................... 26

Universal America Corp. v. National Union Fire Insurance Company of Pittsburgh, PA.,
25 N.Y.3d 675, 679 (2015) ........................................................................................................... 14

Universal American Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa.,
110 A.D.3d 434, 434 (N.Y. App. Div. 1st Dep’t 2013)................................................................ 13

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Wider v. Heritage Maintenance, Inc.,
14 Misc.3d 963, 975, 827 N.Y.S.2d 837 (2007) ........................................................................... 20

Rules
N.Y. C.P.L.R. 3212 (McKinney) .................................................................................................. 12

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PRELIMINARY STATEMENT

Defendant Starr Surplus Lines Insurance Company (“Starr”) respectfully requests that the

Court grant this motion for summary judgment dismissing Plaintiff’s Complaint. 1 Plaintiff, E.E.

Cruz and Company, Inc. (“Cruz”) reported a loss to a defective caisson. The Policy excludes

coverage for damage to a caisson. Furthermore, the Policy’s Cost of Making Good exclusion

precludes coverage for faulty or defective workmanship. Thus, the Policy unambiguously excludes

coverage for Cruz’s loss. Even if there were coverage for damage to the caisson, Cruz’s impact

costs would never be covered under the Policy.

Cruz’s cause of action for bad faith fails because there is no coverage for Cruz’s claim and

Cruz has no evidence to support this cause of action. Starr is entitled to judgment on Cruz’s causes

of action for negligent misrepresentation and violation of GBL § 349 because Cruz cannot show

any misinformation or materially misleading act by Starr.

STATEMENT OF MATERIAL FACTS

A. The Project

Cruz, a subsidiary of Flatiron Construction Corp., “specializes in heavy civil construction,

with expertise in transportation, infrastructure, deep foundation, bridge and geotechnical projects.”

See https://www.flatironcorp.com/location/ee-cruz-division/. Cruz is a respected contractor in this

industry. See Exhibit 2, Ozbek Dep. 123:16-20. On or about May 5, 2017, Cruz entered into a

design-build contract with the New York State Department of Transportation (“NYSDOT”) for

the repair and replacement of three bridges in Westchester County, New York – one located on

1
Plaintiff’s Complaint (NYSCEF Doc. No. 4), which was filed on September 4, 2020, is attached as Exhibit
1 (the “Complaint”).

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East 3rd Street and Hutchinson River Parkway in Pelham, New York, and two located on Route

987D over the Saw Mill River in Greenburgh, New York (“the Project”). See Exhibit 1, Complaint

¶ 3. The Project required Cruz to construct a total of twenty caissons (referred to as “drilled shafts”

in Cruz’s Complaint) to provide the foundation for the bridges. Id. ¶ 4. Cruz’s building updates

provide details on the Project and describe “caissons” being poured, “caisson caps, columns and

pedestals erected,” “installation of rebar and concrete placement in caissons,” and “drilling of

caissons.” See Exhibit 3, EECRUZ005424–005545, p. 8-10, 17, and 22 of 23. 23 The procedure for

installing the caissons is further detailed in Cruz’s document titled “Drilled 48” Caissons with

42” Rock Sockets – Installation Equipment and Procedures.” See Exhibit 8, EECRUZ010655-

EECRUZ010700, p. 8, 9-13 of 47. The first seventeen caissons were installed without incident.

See Exhibit 1, Complaint ¶ 6.

During the construction of the eighteenth caisson, Pier 2, Shaft 2 on Bridge No. 719 over

the Saw Mill River Parkway, testing revealed that water and silt had infiltrated the caisson. See

Exhibit 1, Complaint ¶¶ 7-9; Exhibit 9, p. 3 of 3; Exhibit 2, Ozbek Dep. 25:19-21; 37:18-38:18.

This testing determined that the caisson was “unsuitable to support the load” of the bridge. See

Exhibit 10, Sheehan Dep. 43:10-17; see also Exhibit 2, Ozbek Dep. 101:17-21. This required Cruz

“to completely abandon it in place” and replace it with micropiles (the “Loss”). See Exhibit 11, p.

7 of 16.

B. The Policy

Starr insured Cruz under Policy No. SLSTCON11432618 effective June 1, 2017, to April

10, 2019. See Complaint ¶ 14; Exhibit 12, Final Policy for E.E. Cruz and Company (the “Policy”).

2
Please note that we have emphasized the word caisson to alert the Court to Cruz’s use of the word caisson
throughout this Project.
3
See also Exhibit 4, EECRUZ005617-005640; Exhibit 5, EECRUZ005994-6101; Exhibit 6,
EECRUZ022424-022537; Exhibit 7, EECRUZ007397-007425.
2

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Cruz procured this Policy through its insurance broker, McGriff, Seibels & Williams, Inc.

(hereinafter, “McGriff”). The Policy was negotiated by Mr. Hyland Knecht of McGriff, who has

had nearly 30 years of experience in the insurance industry. See Exhibit 13, Knecht Dep. 11:6-25.

Prior to being bound, it was “reviewed by [McGriff’s] quality control department and there were

no errors found.” See Exhibit 14, McGriff_EECruz_001915. The Policy provides coverage for the

Project. See Exhibit 1, Complaint ¶ 18. The Insuring Agreement provides that the Policy – subject

to its terms, exclusions, limitations, and conditions – insures against “all risks of direct physical

loss of or damage to property insured while at the location of the Insured Project” occurring during

the period of the Policy. See Exhibit 12, Policy p. 12 of 52.

The Policy contains a “Piling, Sheet Piling & Caisson Endorsement” (the “Caisson

Endorsement”) that excludes coverage for repairing or replacing abandoned or damaged caissons:

***

THIS ENDORSEMENT CHANGES YOUR POLICY.
PLEASE READ IT CAREFULLY.

PILING, SHEET PILING & CAISSON ENDORSEMENT

When coverage is provided on caissons, piling and sheet piling, the
Company shall not be liable for:

1. Replacing, repairing, realigning or rectifying casings, piles or
sheet piles:

A. Which have become misplaced, misaligned or jammed
during their installation;
B. Which are abandoned or damaged during installation or
extraction;
C. Which have become obstructed by jammed or damaged
piling equipment or casings;

2. Rectifying defective or declutched sheet piles;

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3. Rectifying any leakage or material infiltration of any kind;
4. Filling voids or replacing lost bentonite;
5. Reinstating profiles and dimensions;
6. Failure to reach design load bearing capacity or to pass load
bearing tests or damage or destruction as a result of load
bearing tests;
***
See Exhibit 12, Policy p. 46 of 52. Thus, the Policy unambiguously excludes coverage for the costs

to rectify: (1) caissons abandoned during installation; (2) leakage or material infiltration of any

kind; and (3) failure to reach design load bearing capacity.

The Policy further contains an exclusion for loss or damage caused by caused by fault,

defect, error, deficiency or omission in design, plan, or specification:

***
SECTION III – EXCLUSIONS

***
2. PERILS EXCLUDED:

This Policy shall not pay for loss, damage or expense caused by,
resulting from, contributed to or made worse by any of the
following excluded perils, all whether direct or indirect,
proximate or remote or in whole or in part caused by, contributed
to or aggravated by any physical loss or damaged insured by this
Policy, except as specifically provided below:

***
B. COST OF MAKING GOOD

2. Fault, defect, error, deficiency or omission in design, plan
or specification;
***

See Exhibit 12, Policy p. 20 of 52.

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Finally, the Policy does not provide coverage for “impact costs.” The Policy states in

pertinent part:

***
1. INSURING AGREEMENT:

This Policy, subject to the terms, exclusions, limitations and
conditions contained herein or endorsed hereto, insures against
all risks of direct physical loss of or damage to property insured
while at the location of the INSURED PROJECT, …
***

See Exhibit 12, Policy p. 12 of 52. By its terms, the Insuring Agreement only provides coverage

for “direct physical loss of or damage to property.” Coverage for impact costs was available as an

“extension of coverage” if purchased by Cruz. The Policy provides, in pertinent part:

***

3. EXTENSIONS OF COVERAGE:

***

M. Contractor’s Extra Expense

***

This Policy is extended to cover reasonable and necessary
Extra Expense, subject to the Sublimit of Liability stated
under Section 1-9.B, which is incurred by the Named
Insured for the purpose of continuing as nearly as practicable
the scheduled progress of undamaged work but only when
such scheduled progress is impaired by direct physical loss
or damage insured to the property insured.

***

See Exhibit 12, Policy p. 15 of 52. According to both the Policy quote and binder, Starr never

represented that Contractor’s Extra Expense would be included in coverage. See Exhibit 13 at

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90:12-21. But Cruz did not buy or even request this coverage. Id. at 89:19-24. Thus, in the Policy’s

Section 1-9.B, Contractor’s Extra Expense is clearly marked “Not Covered.” See Exhibit 12,

Policy p. 8 of 52. No other relevant provision of the Policy mentions coverage for impact costs for

undamaged property.

C. The Insurance Claim

On December 18, 2018, Rob Richardson of Cruz, a professional engineer, emailed Jeanine

Anerella of Cruz and advised her of “problems with caissons at Saw Mill River Bridges.” See

Exhibit 15, p. 6 of 6. On December 20, 2018, Cruz submitted a property loss notice to Starr through

its insurance broker, McGriff. See Exhibit 16. The property loss notice states “caisson and concrete

failed at bridge project resulting in caisson and concrete unusable. Insured will replace with

micropiles. Insured will incur delay costs and acceleration costs.” Id. at p. 4 of 4.

Before and throughout the adjustment process, many documents regarding the Loss were

exchanged between Cruz, the adjustment team, the Department of Transportation, and others,

referring to the damaged property as a “caisson.” See, e.g.:

• Exhibit 17, p. 4 of 4 (May 19, 2018 Email from Jimmy Maldonado of Cruz

describing “Caissons on SMRP have been unexpectedly deeper and have slowed

down/delayed the start of abutment/column work and overall bridge structure

progress.”

• Exhibit 18 (December 19, 2018 email from Hyland Knecht of McGriff to Joe

Polifiaco of Flatiron Corporation with the subject line “3 Bridges Caissons Issues

Builders Risk Potential Claim”);

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• Exhibit 19, p. 9 of 23 (January 4, 2019 redesign plans from Hardesty & Hanover,

LLC, a professional engineering group, to Cruz, with the scope of work described

as “installing…micropiles…for remedial piles at 48” caisson shaft location #2 at

bridge #719 pier #2”);

• Exhibit 20 (February 7, 2019 email from Jimmy Maldonado of Cruz to Rodney

Herald of McGriff attaching “cost breakdown for caisson remediation”);

• Exhibit 9 (January 31, 2019 letter from Cruz to the Department of Transportation

advising them of a “differing site condition” during the “installation of the

caisson”);

• Exhibit 21 (Request for Information from York Risk Services requesting Cruz’s

“Caisson videos” and “Caisson installation procedure”);

• Exhibit 22, p. 4 of 5( February 4, 2019 letter from Mahmoud Ahmed, a project

manager at the Department of Transportation stating that “the Department does not

consider the underground aquifer/stream encountered at the SMRP bridge 719

during the installation of the caisson at pier 2 shaft 2 to be a Differing Site

Condition”);

• Exhibit 23 (March 11, 2019 email from Jimmy Maldonado of Cruz to Keith Culley

of York attaching the “Caisson installation procedure”);

• Exhibit 24 (April 9, 2019 email to Starr attaching Cruz’s application for an

extension of coverage, stating Cruz was “unable to complete work at Sawmill River

Parkway due to differing site condition encountered during the caisson

installation…caisson installed at bridge 719 pier 2 shaft 2 could not be used due to

unknown aquifer flowing underneath shaft, hence differing site condition”);

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• Exhibit 25, p. 5 of 10 (April 16, 2019 email from Jimmy Maldonado of Cruz to

Keith Culley of York with installation log describing how they “sealed Caisson 2”

into rock”);

• Exhibit 26, p. 35, 36, 38, 42, 136, and 267 of 268 (September 5, 2019

comprehensive request for additional time from Cruz to the Department of

Transportation referencing a “caisson” being installed, being poured, and being

built).

As such, Cruz understood the damaged property to be a caisson.

Shortly after being notified of the claim, Starr began investigating the claimed damages

and conducted site inspections on January 4, 2019, and January 9, 2019. Starr communicated

frequently with Cruz about Starr’s investigation, and consistently communicated its coverage

position to Cruz with reservation of rights letters. See, e.g., Exhibits 36 and 37. On November 15,

2019, Cruz submitted its final claim to Starr. The claim totaled $4,385,615.53. See Exhibit 27,

EECRUZ041622. Only $604,620.44 of the claim is for “Repair Costs.” Id. These costs were

“directly associated with repairing and addressing the issue that occurred.” See Exhibit 2, 46:20-

47:3. $3,708,482.79 out of $4,385,615.53 claimed is for what Cruz refers to as “impact costs.” Id.

These “impact costs” are associated with “the approximate sixty-work-day time extension

necessary to complete construction of the undamaged property” and include additional costs of

labor, equipment, project management, and general conditions all stemming from the failed

caisson. See Exhibit 28, p. 4 of 5.

After receipt of this claim, Starr sent Cruz a position letter on November 18, 2019 advising

that the Caisson Endorsement would apply to preclude coverage. The letter further advised even

if the damaged property were not a caisson, the Cost of Making Good exclusion would apply to
8

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preclude coverage. Finally, the letter provided that even assuming there was coverage for the Loss,

Cruz’s “impact cost” claim was not covered under the Policy. Id.

Shortly after the receipt of this letter, Cruz’s representatives were advised to “remove the

word caisson from any [and] all correspondence.” See Exhibit 30; see also Exhibit 31, Herald Dep.

102:19-103:6. Cruz responded to Starr’s letter on December 18, 2019, expressing disagreement

with Starr’s coverage position. See Exhibit 32. On January 10, 2020, Starr reaffirmed that its

investigation to date found that no coverage existed for the Loss and once again requested any

documents or information from Cruz relative to Starr’s position. See Exhibit 33. This lawsuit

ensued.

LEGAL STANDARD

Starr’s request to dismiss Cruz’s Complaint is ripe for summary judgment because there

are no questions of material fact. Summary judgment must be granted when itis clear that no

triable issues of fact exist. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (N.Y. App. Div., 1st

Dep’t 1986). A motion for summary judgment “shall be granted if, upon all the papers and proof

submitted, the cause of action or defense shall be established sufficiently to warrant the court as a

matter of law in directing judgment in favor of any party.” N.Y. C.P.L.R. 3212 (McKinney).

“Once this showing has been made . .. the burden shifts to the party opposing the motion for

summary judgment to produce evidentiary proof in admissible form sufficient to establish the

existence of material issues of fact which require a trial of the action.” Id.

Where, as here, an insurance policy clearly and unambiguously precludes coverage, a court

should grant summary judgment in favor of the insurer and issue a declaration that the policy does

not provide the coverage sought by the insured. Universal American Corp. v. National Union Fire

Ins. Co. of Pittsburgh, Pa., 110 A.D.3d 434, 434 (N.Y. App. Div. 1st Dep’t 2013) (holding that

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the “court properly interpreted the policy as a matter of law”); Slattery Skanska Inc. v. American

Home Assur. Co., 67 A.D.3d 1, 14 (N.Y. App. Div. 1st Dep’t 2009) (“When the terms and

conditions of an insurance policy are clear and unambiguous, the construction of the policy

presents a question of law to be determined by the court and the court may properly grant summary

judgment”). Because the Policy unambiguously excludes coverage for the Loss, Starr respectfully

requests that summary judgment be granted and Cruz’s Complaint be dismissed in its entirety with

prejudice.

ARGUMENT

I. CRUZ’S CAUSES OF ACTION FOR DECLARATORY JUDGMENT AND
BREACH OF CONTRACT SHOULD BE DISMISSED BECAUSE THE LOSS IS
NOT COVERED UNDER THE POLICY

Cruz’s causes of action for declaratory judgment and breach of contract should be

dismissed because the Loss is not covered under the Policy. Both causes of action require Cruz to

establish that it sustained a covered Loss under the Policy. See Park Country Club of Buffalo, Inc.

v. Tower Ins. Co. of .N.Y, 68 A.D.3d 1772, 1773 (N.Y. App. Div. 4th Dep’t 2009) (stating that

under New York law, “an insured seeking to recover for a loss under an insurance policy has the

burden of proving that a loss occurred and also that the loss was a covered event within the terms

of the policy”); 6593 Weighlock Drive, LLC v. Springhill SMC Corp., 71 Misc. 3d 1086, 147

N.Y.S.3d 386, 393-394 (N.Y. Sup. Ct., Onondaga Cty. 2021) (dismissing complaint alleging

declaratory judgment and breach of contract where the policy did not provide coverage); Consol.

Restaurant Operations, Inc. v. Westport Ins. Corp., No. 450839/2021, 2021 WL 4477692 at *1

(N.Y. Sup. Ct., New York Cty. 2021) (same). Here, the Policy unambiguously states that Starr will

not be liable for the costs to rectify: (1) caissons abandoned during installation; (2) leakage or

material infiltration of any kind; and (3) failure to reach design load bearing capacity. The Policy

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additionally excludes coverage for loss or damage caused by fault, defect, error, deficiency or

omission in design, plan, or specification. Assuming, arguendo, that Cruz could show that the

Policy would provide coverage for these costs, the Policy does not cover Cruz’s claim for “impact

costs.”

A. The Caisson Endorsement Applies to Preclude Coverage

Cruz’s causes of action for declaratory judgment and breach of contract should be

dismissed because the Policy does not provide coverage for the costs to rectify: (1) caissons

abandoned during installation; (2) leakage or material infiltration of any kind; and (3) failure to

reach design load bearing capacity. Cruz fully understood that the damaged property was a caisson.

Under New York law, “an insurance agreement is subject to principles of contract interpretation.”

Universal America Corp. v. National Union Fire Insurance Company of Pittsburgh, PA., 25

N.Y.3d 675, 679 (2015); see also Clarke v. Travco Ins. Co., No. 13-CV-5140 (NSR), 2015 WL

4739978, at *6 (S.D.N.Y. Aug. 7, 2015) (citation omitted). Policy terms are construed in

accordance with the person or business to whom a policy is issued “who, of course, relates it to

the factual context in which it is used” Michaels v. City of Buffalo, 85 N.Y. 2d 754, 757 (1995)

(citing Miller v. Continental Ins. Co., 40 N.Y.2d 675, 676, 389 N.Y.S.2d 565, 358 N.E.2d 258

(1976)). In this case, the Policy was issued to Cruz, who clearly understood that the damaged

property was a caisson.

The factual context in which caisson was used is best evidenced by Cruz’s own words and

documents. Cruz, an expert in the industry of building bridges, consistently referred to the

damaged property as a caisson. Specifically, the evidence shows that prior to the Loss and

throughout this Claim, everyone at Cruz – Cruz’s president, project managers, professional

engineers, employees, and insurance brokers – understood the damaged property to be a caisson.

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Cruz called the damaged property – Pier 2 Shaft 2 on Bridge 719 – a “caisson” in building updates,

engineering documents, letters, meetings, loss notices, policy extension requests, and internal

communications:

• Cruz Building Update from August 2018 (Exhibit 3):

o “Below is the progress that occurred during the month of July, 2018…the caissons

are poured.” Exhibit 3, p. 8 of 23.

o “Below is the progress that occurred during the month of April and beginning of

May, 2018…Poured the caissons for Bridge 719.” Exhibit 3, p. 9-10 of 23.

o “Below is the progress that occurred during the month of April and beginning of

April, 2018: 550719 – Completed installation of rebar and concrete placement in

caissons 3, 4 & 5 for pier 2.” Exhibit 3, p. 10 of 23.

o “Below is the progress that occur[ed] during the month of March 2018: 550719 –

Completed Drilling of caissons 3 & 4 and began no. 5. Installed rebar and concrete

on Caissons 3 & 4.” Exhibit 3, p. 10 of 23.

o “As of August 1, 2018, the longest path starts with Drill shaft remediation for

bridge 719, once completed, the caissons will be poured and the caisson caps,

columns and pedestals erected, to make way for the steel erection.” Exhibit 3, p. 17

of 23.

• December 18, 2018 email from Rob Richardson of Cruz, a professional engineer to

Jeannine Anerella of Cruz regarding “problems with caissons at Saw Mill River Bridges.”

See Exhibit 15, p. 5 of 5.

17 of 32
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• December 19, 2018 email from Hyland Knecht of McGriff to Joe Polifiaco of Flatiron

Corporation with the subject line “3 Bridges Caissons Issues Builders Risk Potential

Claim.” See Exhibit 18.

• December 20, 2018 email from Rodney Herald of McGriff to Jim Jezewski of Starr

attaching Cruz’s property loss notice: “caisson and concrete failed at bridge project

resulting in caisson and concrete unusable.” Exhibit 16, p. 4 of 4.

• Cruz Building Update from January 2019 (Exhibit 6):

o “Below is the progress that occurred during the month of November,

2018…5500719…Build Caissons” Exhibit 6, p. 9 of 115.

o “Caissons Rebar & Concrete – BIN 719 S2 Pier 2” Exhibit 6, p. 49 of 114.exhi

• January 4, 2019 redesign plans from Hardesty & Hanover, LLC, a professional engineering

group, to Cruz (Exhibit 19):

o “The scope of work involves installing…micropiles…for remedial piles at 48”

caisson shaft location #2 at bridge #719 pier #2.” Exhibit 19, p. 9 of 23.

o “The following equipment will be used in the mini-caisson construction” Exhibit

19, p. 9 of 23.

• January 31, 2019 email from Jimmy Maldonado of Cruz to the Department of

Transportation advising them of a “differing site condition” during the “installation of the

caisson at pier 2 shaft 2.” Exhibit 9, p. 3 of 3.

• February 7, 2019 email from Jimmy Maldonado of Cruz to Rodney Herald of McGriff

attaching a “cost breakdown for impacts due to Caisson remediation efforts.” Exhibit 20,

p. 2 of 5.

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NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/28/2022

• March 6, 2019 Request for Information from

Case Info

Judge

Nancy M. Bannon Track Judge’s New Case

Case No.

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Document Filed Date

October 28, 2022

Case Filing Date

June 08, 2020

County

Parties

BREHONY, DAWN M Attorney for the Defendant
E.E. CRUZ & COMPANY, INC. Plaintiff
MANOBIANCA, STACY M. Attorney for the Plaintiff
NAGEL, ANNA Attorney for the Defendant
PODOLAK, GREGORY DAVID Attorney for the Plaintiff
ROCCO, CHARLES J Attorney for the Defendant
SMALL, BRYAN ANTHONY Attorney for the Plaintiff
STARR SURPLUS LINES INSURANCE COMPANY Defendant
VICERE, ASHLEY CHRISTINE Attorney for the Defendant
JOHN CHAMBERS Attorneys for Plaintiffs
STEFANI BONATO Attorney
MICHAEL ANGIULO Attorney
JONATHAN WOHL Attorney
STEPHANIE BARAN Attorneys for Defendants
THOMAS CAHILL Attorney
STEPHANIE BERSHAD Attorney

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Motion-Secondary: E.E. Cruz & Company, Inc. v. Starr Surplus Lines Insurance Company

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