W&W Glass Sys., Inc. v. Admiral Ins. Co.

• Decision Date: 19 January 2012
• Citation: 91 A.D.3d 530,937 N.Y.S.2d 28,2012 N.Y. Slip Op. 00307
• Court: New York Supreme Court — Appellate Division
• Parties: W & W GLASS SYSTEMS, INC., Plaintiff–Respondent, v. ADMIRAL INSURANCE COMPANY, et al., Defendants–Appellants.

2012 N.Y. Slip Op. 00307

91 A.D.3d 530

937 N.Y.S.2d 28

W & W GLASS SYSTEMS, INC., Plaintiff–Respondent,

v.ADMIRAL INSURANCE COMPANY, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Jan. 19, 2012.

Litchfield Cavo LLP, New York (Joseph E. Boury of counsel) for appellants.

James J. Toomey, New York (Eric P. Tosca of counsel), for respondent.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, New York County (Martin Shulman, J.), entered September 14, 2010, which, to the extent appealed from, granted plaintiffs' motion for summary judgment declaring that defendant Admiral Insurance Company (Admiral) had a duty to defend plaintiff in the underlying action, awarding past defense costs, and referring the calculation of defense costs to a special referee, unanimously affirmed, with costs.

In this declaratory judgment action, plaintiff general contractor seeks a declaration that it was entitled to defense and indemnification from Admiral in connection with an underlying personal injury action in which an employee of defendant Metal Sales Company, Inc., a subcontractor hired by plaintiff, was injured. Metal Sales had a commercial general policy with Admiral pursuant to which plaintiff was named as an additional insured. The policy provided that plaintiff was covered “only with respect to liability caused by [the subcontractor's] ongoing operations performed for that insured [i.e., plaintiff].” The policy further provided that it “does not apply to liability caused by the sole negligence of the person or organization [named as an addition insured].”

Contrary to defendants' argument that the “caused by” language in the policy is “narrower” than the “arising out of” language in BP Air Conditioning Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007], the case relied on by the motion court, the phrase “caused by your ongoing operations performed for that insured,” does not materially differ from the general phrase, “arising out of” ( see Regal Constr. Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34, 38, 904 N.Y.S.2d 338, 930 N.E.2d 259 [2010]; see also QBE Ins. Corp. v. Adjo Contr. Corp., 32 Misc.3d 1231(A), 2011 WL 3505475 [2011] ). The language in the additional insured endorsement granting coverage does not require a negligence trigger ( see Hunter Roberts Const. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404, 407–08, 904 N.Y.S.2d 52 [2010] ), and the record demonstrates that the loss involves an employee of Metal Sales, the named insured, who was injured while performing the named insured's work under the subcontract. It is immaterial that the complaint against the insured asserts...