Endurance Am. Specialty Ins. Co. v. Century Sur. Co.
Decision Date | 15 September 2014 |
Docket Number | No. 13 Civ. 5538AJP.,13 Civ. 5538AJP. |
Citation | 46 F.Supp.3d 398 |
Parties | ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY and Hayden Building Maintenance Corporation, Plaintiffs, v. CENTURY SURETY COMPANY, Defendant. |
Court | U.S. District Court — Southern District of New York |
Sharon Beth Kaufman, Schoenfeld, Moreland & Reiter, P.C., Jennifer Freda Mindlin, White Fleischner & Fino, LLP, New York, NY, for Plaintiffs.
Cassandra Anne Kazukenus, Hurwitz & Fine, P.C., Buffalo, NY, Dan David Kohane, Hurwitz & Fine, P.C., Melville, NY, for Defendant.
Plaintiffs Endurance American Specialty Insurance Company and Hayden Building Maintenance Corporation bring this diversity action against defendant Century Surety Company seeking a declaratory judgment that Century is obligated to defend and indemnify Hayden in an underlying state court action. (Dkt. No. 15: Am. Compl. ¶¶ 24–36.) Century counter-claims for a declaratory judgment that it is not obligated to defend and indemnify Hayden , or in the alternative, that Century's coverage of Hayden is excess over Endurance's coverage (Ans. & Countercl. ¶ 40).
Presently before the Court are the parties' cross-motions for summary judgment.
The parties have consented to decision of these motions by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10: 11/15/13 Consent Notice.)
For the reasons set forth below, plaintiffs' motion (Dkt. No. 18) is GRANTED with respect to Endurance's claim for a declaratory judgment that Century is obligated to defend and indemnify Hayden in the underlying action and that the Endurance and Century policies share ratably. Century's motion (Dkt. No. 22) is DENIED with respect to its counter-claim for a declaratory judgment that its policy coverage is excess to Endurance's.
Hayden is a contractor who contracted to perform construction services on a project at 400 Columbus Avenue in Manhattan (“Columbus Ave. project”). ( 1 Pinnacle contracted with Hayden to perform roofing work on the Columbus Ave. project. ( 2 Artur Sleszynski, the plaintiff in the underlying state court action, was a Pinnacle employee who sustained personal injuries while working on the roof at the Columbus Ave. project on September 10, 2011. (Rule 56.1 Stmt. ¶¶ 3, 7–11.)
Endurance issued a commercial general liability policy to Hayden for the period of September 1, 2011 to September 1, 2012. ( Century issued a commercial general liability policy to Pinnacle for the period of May 18, 2011 to May 18, 2012. (
On January 24, 2011, Hayden and Pinnacle entered into an Independent Contractor Agreement that applied to all Hayden job sites. ( The Agreement contains an Insurance Indemnification Rider, which states as follows:
(Ex. G: Hayden–Pinnacle Master Sub–Contract, Ins. Indemnification Rider, emphasis added to Hold Harmless clause.)
On August 16, 2011, Pinnacle contracted with Hayden to perform the roofing work on the Columbus Ave. project. ( The contract states: (Ex. J: Hayden–Pinnacle Sub–Purchase Order.)
Century issued a Commercial General Liability Policy to Pinnacle for the period of May 18, 2011 to May 18, 2012. ( Section I of the Commercial General Liability Coverage Form describes Century's obligations under the policy for “bodily injury” claims. (Ex. L: Century Policy at 19–20.)3 Section I also contains a list of exclusions—categories of bodily injury that are not covered by Century's insurance policy—including an “Employer's Liability” exclusion (id. ) as modified by an “Action Over Exclusion” endorsement, which states:
This exclusion applies:
(Ex. L: Century Policy, Employer's Liability Exclusion Endorsement at 65, emphasis added.)
In relevant part, the preamble provides the meaning of select words as used throughout Century's policy:
(Ex. L: Century Policy at 19.) The policy's Declarations indicate as follows: “NAMED INSURED: Pinnacle Construction & Renovation Corp.” (Ex. L: Century Policy at 17–18.)
Section II of the policy, “Who Is An Insured,” is modified by the following endorsement:
ADDITIONAL INSURED—OWNERS, LESSEES OR CONTRACTORS—AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU
This endorsement modifies insurance provided under the following:
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Endurance Am. Specialty Ins. Co. v. Century Sur. Co.
...46 F.Supp.3d 398ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY and Hayden Building Maintenance Corporation, Plaintiffs,v.CENTURY SURETY COMPANY, Defendant.No. 13 Civ. 5538(AJP).United States District Court, S.D. New York.Signed Sept. 15, Motion granted. [46 F.Supp.3d 401] Sharon Beth Kaufma......