This is an insurance declaratory judgment action arising out of a worker's accident at a hospital construction site. Plaintiffs The Brooklyn Hospital Center (the "Hospital") and Barr & Barr ("Barr") move for summary judgment (CPLR 3212) declaring that defendants One Beacon Insurance ("Beacon") and American Motorist Insurance Company s/h/a Kemper Insurance Companies ("AMICO") must defend and indemnify plaintiffs as additional insureds in connection with a personal injury action entitled Donald McNeil et ano v. Brooklyn Hospital and Barr & Barr, Inc.,(Kings County Index No. 49321/99)(the "McNeil Action").

Facts/Background

In the underlying McNeil Action, Donald McNeil ("McNeil") alleges that on December 1, 1999, he was injured in a fall from a collapsing ladder while working at a construction site at the Hospital. His complaint, filed on December 20, 1999, asserts that the accident arose from the negligence of the Hospital (as owner) and Barr (as the Hospital's construction manager). The complaint alleges violations of Labor Law §§ 240(1), 241(6) and 200, as well as common law negligence.Both plaintiffs herein are insured by Travelers Property Casualty ("Travelers"), which undertook the initial defense of the McNeil action. The Travelers policy, however, provides that it is excess to any other insurance available to plaintiffs as additional insureds. In February 2000 Travelers learned from that two of Barr's subcontractors, Donaldson Acoustics Co., Inc. (McNeil's employer) and S.J. Electric, Inc. ("SJ"), might have been involved in the McNeil accident.

Pursuant to their respective subcontracts with Barr, Donaldson and SJ were required to obtain primary liability coverage naming Brooklyn and Barr as additional insureds. Donaldson procured Policy No. OJR716176 from Beacon (then CGU Insurance) for the period November 1, [*2]1999 to January 3, 2000 (the "Beacon Policy"), and SJ procured Policy No. 3MG503454-00 from AMICO effective December 6, 1998 to December 6, 1999 (the "AMICO Policy"). The Beacon Policy included as an insured "any person or organization for whom [Donaldson is] performing operations when [Donaldson] and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured." The AMICO Policy extended coverage to "[a]ny person or organization to whom or to which [SJ is] obligated by virtue of a written contract, agreement or permit to provide such insurance as afforded by this policy" as long as the liability arose out of SJ's work for the additional insured.

On March 10, 2000 Travelers sent a letter to Beacon demanding that it defend and indemnify plaintiffs pursuant to an alleged contract between Donaldson and Barr. Travelers did not receive a response to that letter, or to a follow-up copy of the letter sent in August 2000.

Travelers also sent a letter to SJ in March 22, 2000 asserting that McNeil had been injured while using SJ's ladder and purporting to tender the defense of the underlying action pursuant to the terms of SJ's contract with Barr. AMICO responded by letter dated April 7, 2000, requesting documentation relating the accident and insurance coverage so that it could conduct an investigation. On June 20, 2000, Travelers forwarded to AMICO litigation papers, portions of a subcontract between Barr and SJ dated January 3, 2000, and a certificate of insurance.

AMICO rejected Travelers' tender by letter of July 17, 2000, noting that the subcontract was not signed and was dated after the date of the accident. AMICO also noted that the certificate of insurance identified a coverage period commencing after the date of the accident, and that it listed Yashuda Fire and Marine Insurance Company as SJ's insurer rather than AMICO.

In October 2000, the Hospital and Barr filed a third-party complaint in the McNeil Action asserting that Donaldson and SJ were liable for the injuries alleged. The third party complaint set forth claims for common law and contractual indemnification, and breach of contract to procure insurance. In February 2001, SJ's counsel sent a letter to AMICO demanding that it assume the defense and indemnification of Brooklyn and Barr in the McNeil Action, attaching a copy of the relevant certificate of insurance and the endorsement identifying those parties as additional insureds. SJ was added as defendant in the first-party action in March 2002, with McNeil asserting the same Labor Law and negligence interposed against the Hospital and Barr.

By order dated December 30, 2002 (the "2002 Order"), the trial court in the McNeil action granted summary judgment to plaintiff against the Hospital and Barr on his Labor Law § 240 claim, but dismissed the section 200 and negligence claims against those defendants on the ground that they did not control plaintiff's work, supply him with the ladder, or have notice of the ladder's defect. The court dismissed all claims against SJ, finding, inter alia, that the subcontractor did not supervise McNeil's work or authorize use of its ladder. The court also dismissed the third-party claim against SJ for common law indemnification, but denied the motion for summary judgment dismissing the contractual claims for indemnification and failure to procure coverage. As to Donaldson, the court dismissed the third-party common law and contractual indemnification claims but found questions of fact regarding the subcontractor's alleged breach of contract to procure insurance.

In a subsequent order dated February 25, 2004 (the "2004 Order"), the court, on renewal, [*3]granted the third-party plaintiffs' motion for judgment against SJ on their contractual indemnification claim. The court also granted partial summary judgment against SJ on the failure to procure insurance claim, to the extent of declaring that SJ would be liable for any damages in excess of $1 million and less than $5 million, but only if such damages were not covered by the policies of the Hospital and Barr.

Plaintiffs commenced the instant action in March 2002, seeking a declaration that Beacon and AMICO were obligated to defend and indemnify them as additional insureds. In their answers, Beacon and AMICO each raised defenses relating to, inter alia, late notice of claim and the existence of coinsurance. This motion followed.

Discussion

For the reasons set forth below, the motion for summary judgment is granted to the extent of declaring that (1) Beacon is required to defend and indemnify Barr, but not the Hospital, and (2) AMICO is required to defend and indemnify both plaintiffs.

The Motion for Summary Judgment Against Beacon

Plaintiff Barr is entitled to defense and indemnification under the Beacon Policy insofar as it has established that (1) Donaldson's subcontract obligated it to procure additional insured coverage on behalf of Barr, and (2) the Beacon Policy extends coverage to all parties who contracted in writing with Barr to be added as additional insureds (see, New York Univ. v Royal Ins. Co., 200 AD2d 527 [1st Dept 1994]). Beacon's argument that the agreement to procure insurance was not "in writing in a contract or agreement" within the meaning of the policy is without merit. Although the Purchase Order was not signed by Donaldson, there is no dispute that it forms the binding subcontract agreement between Barr and Donaldson, and that it was in writing. Furthermore, its validity was never challenged in the McNeil Action. Accordingly, the absence of a signature is of no consequence (see, e.g., Jackson v Northeast United Corp., 186 Misc 2d 259 [Sup Ct Tompkins Co 2000][subcontractor's conceded performance under unsigned subcontract naming owner and general contractor as additional insureds satisfied "written contract" requirement of Workers' Compensation Law]).

Beacon's defense of late notice of claim is also rejected. Beacon does not contest receipt of Travelers' March and August 2000 letters, which identified the claimant and the relevant subcontract, attached a certificate of insurance, and demanded that Beacon defend and indemnify plaintiffs. Nor does Beacon dispute that it failed to reply to that demand. Beacon's contention that Travelers' failed to indicate that the tender was invoking the policy's additional insured provisions is baseless, insofar as the attached certificate of identified the additional insureds. Furthermore, contrary to Beacon's argument, the letters cannot be read as demanding that the insurer fulfill Donaldson's alleged contractual indemnification obligations under its contract with Barr. Rather, the only fair reading is that Travelers was seeking to trigger the additional insureds endorsement in the Beacon Policy by a reference to the subcontract provisions obligating Donaldson to obligation to procure insurance on behalf of the additional insureds.

Beacon is not required to extend coverage to the Hospital, however, insofar as there is no written agreement specifically between Donaldson and the Hospital requiring that the Hospital be named as an additional insured (see, Linarello v City Univ. Of NY, 6 AD3d 192 [1st Dept 2004}). It is irrelevant that the Hospital was identified as an additional insured in the certificate of [*4]insurance, as the certificate was issued "as a matter of information only" and thus could not serve to alter the actual coverage as set forth in the policy (see, Buccini v 1568 Broadway Assocs., 250 AD2d 466 [1st Dept 1998]). Similarly, Beacon's failure to disclaim as to the Hospital is immaterial. "Where a clause limits the circumstances in which a party is an additional insured under an insurance policy and the underlying claim falls outside the limited coverage provided, disclaimer pursuant to Insurance Law § 3420(d) is not required" (Nat. Union Fire Ins. Co. of Pittsburgh v Utica First Ins. Co., 6 AD3d 681 [2d Dept 2004]).

The Motion for Summary Judgment Against AMICO

For substantially the reasons stated above, AMICO is obligated to defend both Barr and the Hospital. Although there is no specific contract between SJ and the Hospital obligating SJ to procure insurance, as noted above the AMICO Policy extends coverage to "[a]ny person or organization to whom or to which [SJ is] obligated by virtue of a written contract, agreement or permit to provide such insurance as afforded by this policy." Accordingly, the policy requires only that some contract exist obligating SJ to procure coverage for an additional insured, without requiring that the additional insured itself be a party to that agreement. SJ's subcontract with Barr obligated it to obtain coverage for the Hospital, thereby triggering the additional insured provisions of the AMICO policy.

AMICO cannot invoke late or improper notice of claim as a defense to coverage. Although Travelers originally notified SJ of the claim instead of AMICO, AMICO thereafter communicated with Travelers directly without objecting to the form or the timeliness of the notice. Rather, AMICO merely raised questions regarding the governing subcontracts and insurance contracts and invited submission of additional information. When SJ forwarded such documentation and specifically demanded that AMICO assume the defense of the additional insureds in early 2001, AMICO did not reply. By failing to raise its purported notices defense until it served an answer in April 2002, AMICO waived them (see, (Matter of Firemen's Fund Ins. Co. v Hopkins, 88 NY2d 836 [1996]; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028 [1979]; Hotel des Artistes, Inc. v General Acc. Ins. Co. of Amer., 9 AD3d 181 [1st Dept 2004]).

Nor is AMICO excused from its coverage obligations by virtue of the 2002 Order in the McNeil Action absolving SJ of common law negligence. The AMICO policy extended coverage to the additional insured "with respect to liability arising out of . . . [SJ's] work." As noted by the 2004 Order, such broad language is sufficient to trigger coverage, absent proof of negligence (see, Keena v Gucci Shops, 300 AD2d 82 [1st Dept 2002]).

Finally, because it is undisputed that the Travelers' policy is excess to the additional insureds coverage of the Beacon and AMICO polices, those insurers must share primary liability for the defense and indemnification of plaintiff Barr (see, Pecker Iron Works v Travelers Ins. Co., 99 NY2d 391 [2003]. For the same reason, AMICO must assume primary liability for the defense and indemnification of the Hospital. Contrary to defendants' sug- gestion, the declaration need not await a determination of obligations of National Union Fire Insurance Co. ("National"). Although Beacon has annexed to its papers a purported commercial general liability policy issued to the "Combined Coordinating Council Inc." which bears National's name and lists the Hospital as one of seven additional named insureds, the document is an unsigned draft. Furthermore, National has not been joined or otherwise participated in this [*5]or the McNeil Action, and there is no evidence or even suggestion that National was ever notified of the claims herein.

Accordingly, it is

ADJUDGED and DECLARED that defendants One Beacon Insurance f/k/a CGU Insurance and American Motorist Insurance Company s/h/a Kemper insurance are obligated to share, on a primary basis, in the defense and indemnification of plaintiff Barr & Barr, Inc. in the action entitled Donald McNeil et ano v. Brooklyn Hospital and Barr & Barr, Inc.,(Kings County Index No. 49321/99), and it is further

ADJUDGED and DECLARED, that defendant American Motorist Insurance Company s/h/a Kemper insurance is obligated provide, on a primary basis, the defense and indemnification of plaintiff The Brooklyn Hospital Center in the action entitled Donald McNeil et ano v. Brooklyn Hospital and Barr & Barr, Inc.,(Kings County Index No. 49321/99), and it is further

ORDERED, that the Clerk shall enter judgment accordingly, and it is further

ORDERED, that the parties shall appear for a conference before the court on January ____, 2005, at ___ a.m., to report the defense and indemnification costs incurred to date.

Dated: December 14, 2004

ENTER:

Helen E. Freedman, J.S.C. [*6]

Appearances

Attorneys for the Plaintiffs Brooklyn Hospital Center and Barr and Barr, Inc.

The Law Offices of Michael F. X. Manning

One Whitehall Street, 12th Floor

New York, New York 10004

(212) 530-7777

By: Sharon Schweidel, Esq. and Warren T. Harris, Esq.

Attorneys for Defendant One Beacon Insurance f/k/a CGU Insurance

DeCicco, Gibbons & McNamara, P.C.

14 East 38th Street

New York, New York 10016

(212) 447-1222

By: Daniel J. McNamara, Esq.

Attorneys for Defendants American Motorist Insurance Company

i/s/h/a Kemper Insurance Companies

Ahmuty, Demers & McManus

200 I.U. Willets Road

Albertson, NY 11507

(516) 294-5433

By: Catherine R. Everett, Esq.

Attorneys for Defendant Donaldson Acoustics Co., Inc.

Zawacki, Everett, Gray & McLaughlin

116 John Street

New York, New York 10038

(212) 732-3377

By: John Gray, Esq.

Attorneys for Defendant S.J. Electric, Inc.

Law Offices of Parisi & Smitelli

265 Sunrise Highway

Rockville Centre, New York 11570

(516) 256-1166

By: Gregory J. Parisi, Esq.