Genting New York LLC, TUTOR PERINI CORPORATION, RESORTS WORLD CORP. and THE STATE OF NEW YORK., Plaintiffs,
against
Navigators Insurance Company, Defendant.
|
155825/14
Genting New York, LLC v. Navigators Insurance Company, 155825-14
For plaintiffs:
The Law Offices of Leon R. Kowalski
12 Metrotech Center, 28th Floor
Brooklyn, New York 11201
By: Michael J. Pearsall, Esq.
For defendant:
Mound Cotton Wollan & Greengrass
One New York Plaza, 44th Floor
New York, New York 10004
By: Ellen Margolis, Esq. and Tania A. Gondiosa, Esq.
Robert R. Reed, J.
Plaintiffs Genting New York LLC (Genting), Tutor Perini Corporation (Tutor Perini), Resorts World Corp. (Resorts), and the State of New York move, pursuant to CPLR 3001 and 3212, for summary judgment and a declaration that defendant Navigators Insurance Company (Navigators) owes them a defense and indemnification in the underlying actions, entitled Greg Goodley v Resorts World Corp., Genting New York LLC, Tutor Perini Corporation and Five Star Electric Corp., Queens County, index No. 20169/2012, and Greg Goodley v State of New York, pending in the Court of Claims.
Plaintiff in the underlying actions, Greg Goodley, a carpenter working on the [*2]construction of a casino at Aqueduct Racetrack (Racetrack), alleged that he was injured when a hanging electrical cable became entangled in his toolbelt and caused him to fall, as he was descending a ladder. He sued the parties that are plaintiffs here, and North Star Electric Corp. (North Star), one of the subcontractors on the job, alleging that it owned, and had left dangling, the cable at issue. The complaint in the underlying action alleges that Genting and Resorts owned the casino and hired Tutor Perini as the general contractor. The State owns the Racetrack. Plaintiffs' motion is predicated upon plaintiffs' contention that they are all additional insureds under the policy that Navigators issued to North Star (Policy).
Plaintiffs argue, citing New York City Hous. Auth. v National Union Fire Ins. Co. (270 AD2d 123 [1st Dept 2000]), that they are additional insureds, because Tutor Perini's contract with North Star requires North Star to provide them with such coverage. However, that case holds only that, under the insurance policy at issue there, a party that contracted in writing with the insured for coverage as an additional insured was entitled to such coverage. Here, like the insurance policy at issue in New York City Hous. Auth., the Policy provides that an additional insured is:
"Any person or organization for whom you [Five Star] are performing operations during the policy period when you 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 on your
policy."
(emphasis added). Additional Insured - Owners, Lessees and Contractors. The Policy is annexed to the complaint as exhibit E While it is undisputed that Five Star entered into a contract with Tutor Perini, which required Five Star to obtain general liability coverage naming, among others, Genting, Tutor Perini, and People of the State of New York as additional insureds, none of the plaintiffs, except Tutor Perini, alleges that it entered into a contract with Five Star requiring that Five Star name it as an additional insured. Accordingly, on the record as it now stands, none of the plaintiffs, except Tutor Perini, can show that it is entitled to coverage as an additional insured on the Policy. See AB Green Gansevoort, LLC v Peter Scalamandre & Sons, Inc., 102 AD3d 425, 426 (1st Dept 2013); Linarello v City Univ. of NY, 6 AD3d 192, 195 (1st Dept 2004). It should go without saying that a contract that requires one party to purchase insurance coverage for the other, as an additional insured, is binding upon the first party, but not upon that company's insurer, a stranger to the contract. It is the insurance policy, not an extraneous contract, or other document, that determines whether a party is an additional insured under that policy. See Tribeca Broadway Assoc.v Mount Vernon Fire Ins. Co., 5 AD3d 198, 200 (1st Dept 2004), citing Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337, 339 (1st Dept 2003).
Navigators argues that plaintiffs' motion, as a whole, is premature, because the Policy contains a wrap-up clause, which provides, insofar as is relevant here, that:
"This insurance does not apply to 'bodily injury' or 'property damage' arising out of any project that is or was subject to a
'wrap-up insurance program.' "
The Policy defines "wrap-up insurance program" as:
"any agreement or arrangement, including any contractor-controlled or similar insurance program, under which some or all of the contractors working on a specific project, or specific projects, are required to participate in a program to obtain insurance that:
a. Includes the same or similar insurance as that provided by this Coverage Part; and
b. is issued specifically for injury or damage arising out of such project or
projects."
Policy, Exclusion — Operations Covered By A Consolidated (Wrap-Up) Insurance Program.
Schedule B, paragraph 1.1, of the contract between Tutor Perini and Five Star
provides for a "Contractor Controlled Insurance Program (CCIP) as follows:
"Tutor Perini has arranged with Aon Risk Services of New York, Inc. . . . for this project . . to be insured under its Contractor Controlled Insurance Program ('CCIP'). . . . Parties performing labor or services at the Project site are eligible and are required to enroll in the CCIP, unless they are
'Excluded Parties' . . . The CCIP will provide to Enrolled Parties . . . Worker's Compensation and Employer's
Liability Insurance, Commercial General Liability Insurance, and Excess
Liability Insurance . . . in connection with the performance of the Work . . .
."
Paragraph 1.2 defines "Enrolled Parties" as "the Owner, the Contractor, the CCIP Administrator, and eligible Subcontractors of all tiers that enroll in the CCIP." A copy of the contract is annexed to plaintiffs' motion as exhibit D. Accordingly, if the CCIP was, in fact, issued, and if North Star, in fact, enrolled in it, then Navigators has no obligation to defend or indemnify any of the plaintiffs.
Plaintiffs contend that Navigator's December 5, 2014 disclaimer, on the basis of the wrap-up exclusion is untimely, because, on January 2, 2013, plaintiffs served a copy of Five Star's subcontract upon counsel for plaintiff in the underlying case and upon counsel for Five Star, whom Navigators had retained to represent Five Star. That contention is untenable. Plaintiffs cite no case, and this court is not aware of any, that holds that service upon an attorney retained by an insurance company to represent its insured constitutes service upon the insurance company, or that knowledge of such service may be imputed to the insurance company. It is established that the duty of such an attorney runs solely to the insured. See Feliberty v Damon, 72 NY2d 112, 120 (1988); Federal Ins. Co. v North American Specialty Ins. Co., 47 AD3d 52, 59 (1st Dept 2007). Accordingly, it would be erroneous to presume that the insurance company would have access to discovery obtained on behalf of the insured.
Even were it not premature to grant any relief to Tutor Perini, it would be premature to require Navigators to indemnify Tutor Perini, inasmuch as the issue of whether the hanging cable that snagged Mr. Goodley belonged to Five Star, and hence, the issue of whether Mr. Goodley's injury arose out of Five Star's work, has not yet been decided. In these circumstances, the court declines to issue any declaratory judgment.
Accordingly, it is hereby
ORDERED that the motion of plaintiffs Genting New York LLC, Tutor Perini Corporation, Resorts World Group Corp., and The State of New York for summary judgment and declaratory relief is denied.
Dated: July 15, 2015
ENTER:
___________________
J.S.C.