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Vol. 7, Iss. 3
April 11, 2018


Take Me Out To The Ball Game…
So I Can Sue



Baseball is here! Or, in other words, just five more months till football season. It’s been a struggle for baseball of late. It has ceased being the national pastime, having been surpassed by professional football, college football, the NCAA Men’s Basketball Tournament and even the NFL draft has more anticipation. A documentary on Nick Saban’s fabulous hair could charge more for a 30 second spot than a Tigers game.

But, thankfully, baseball still provides wonderful litigation (perhaps that’s the real national pastime). As a long-time student of litigation involving sports, especially when fans are involved, I was delighted to see the recent coverage decision in The Schenectady Manatees Baseball Club, Inc. v. Iceberg Insurance Co., No. 17-4296 (N.Y. Supr. Ct., Schenectady Cty., Mar. 30, 2018).

The coverage action arose out of the following circumstances. The Manatees are a semi-professional baseball team in Schenectady, New York. They are immensely popular and play their home games at The Ocean stadium. In 2015 The Ocean underwent a renovation and 500 seat expansion to bring the total to 3,500. To finance the renovations and expansion, the Manatees undertook an aggressive season ticket marketing campaign. This included boasting about many exciting culinary offerings that the newly refurbished stadium would feature. A season ticket brochure listed some of these – sushi, fish tacos, Portobello mushroom sandwiches and hot dogs with gluten free rolls.

Long time Manatees fan Herbert Greenblatt purchased two season tickets for 2016. During the opening game he tried the stadium’s new sushi and was pleased. Likewise with the fish tacos during the second game. Game three is where the trouble began. Greenblatt set out to sample the stadium’s much touted Portobello mushroom sandwich. However, he was informed at the concession stand that The Ocean did not offer them. He explained to the employee at the counter that the Manatees’ season ticket brochure stated that Portobello mushroom sandwiches would be served. But all the stadium employee could do was shrug his shoulders and offer to let Greenblatt speak to his supervisor.

Not satisfied, Greenblatt took the matter up with The Ocean’s management. They could only offer an apology, explaining that, at the time the brochure was printed, Portobello mushroom sandwiches had been intended to be sold. But they were left off the final list of new menu items.

Still not satisfied, Greenblatt filed suit, alleging in Herbert Greenblatt v. The Schenectady Manatees Baseball Club, Inc., No. 16-7612 (N.Y. Supr. Ct., Schenectady Cty.) that the Manatees induced him to purchase season tickets by offering to sell Portobello mushroom sandwiches at The Ocean and he relied on this promise when making his decision. Greenblatt included clams for fraud, fraudulent inducement, breach of contract, unjust enrichment, negligence and violation of various New York consumer protection laws. He alleged mental anguish and “loss of enjoyment of the Manatees game experience.” Greenblatt sought an injunction to compel the Manatees to sell Portobello mushroom sandwiches at The Ocean.

The Manatees provided notice of the Greenblatt suit to Iceberg Insurance Co., its commercial general liability insurer.

Iceberg gave The Manatees a chilly response -- disclaiming coverage for a defense. The insurer acknowledged that Greenblatt’s allegations of mental anguish qualified as “bodily injury” under New York’s seminal case -- Lavanant v. Gen. Acc. Ins. Co. of Am., 595 N.E.2d 819 (N.Y. 1992). However, the insurer maintained that Greenblatt was not seeking damages for “bodily injury.” As the insurer saw it, despite the host of claims and damages discussed in the body of the complaint, when push came to shove, and you examined the complaint’s Wherefore clause, all that Greenblatt was seeking was an injunction to compel the Manatees to sell Portobello mushroom sandwiches at The Ocean. Indeed, as the insurer noted in its response to the letter challenging the disclaimer, that’s what Greenblatt told the local paper in a story written about his suit. Greenblatt was quoted as saying, “I’m not trying to put the Manatees out of business. I don’t want their money. I just want to eat a Portobello mushroom sandwich while watching the team play. How hard can that be?”

The Manatees hired counsel to defend the Greenblatt action. After several months of motion practice the parties reached a settlement. While The Manatees did not agree to provide Portobello mushroom sandwiches at its games, the team would add white mushrooms to its salad and name it The Green-blatt. In addition, Greenblatt would get to dress up as the team’s mascot -- The Mighty Manatee – for one game. However, this part of the settlement was kept confidential, so that any young fans, who heard about the settlement, would not be disappointed to learn that The Mighty Manatee is really a person in a costume.

The Manatees incurred $40,000 in defense costs and filed suit against Iceberg, alleging a breach of the duty to defend. On cross motions for summary judgment the court held that the insurer breached its defense obligation.

The court was not convinced that Greenblatt was not seeking damages for “bodily injury.” The court acknowledged that Greenblatt’s Wherefore clause was limited to an injunction to compel the Manatees to sell Portobello mushroom sandwiches at The Ocean. However, the court concluded that, by alleging, in the body of the complaint, mental anguish and “loss of enjoyment of the Manatees game experience” – which was “property damage” based on loss of use -- Greenblatt was seeking “damages” because of “bodily injury” and “property damage.”

What’s more, the court took Iceberg to task for relying on Greenblatt’s statement to the press – “I’m not trying to put the Manatees out of business. I don’t want their money” – as part of its decision that he was not seeking “damages.” This, the court noted, was an impermissible use of extrinsic evidence to deny a duty to defend.


That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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