Tishman Constr. Co. of N.Y. v. Liberty Mut. Fire Ins. Co.
| Decision Date | 04 January 2017 |
| Docket Number | Index No. 154366/2015 |
| Citation | 2017 NY Slip Op 30003 (U) |
| Parties | TISHMAN CONSTRUCTION COMPANY OF NEW YORK and ARE - EAST RIVER SCIENCE PARK, LLC, Plaintiffs, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and HELMARK STEEL, INC., Defendants. LIBERTY MUTUAL FIRE INSURANCE COMPANY and HELMARK STEEL, INC., Third-Party Plaintiffs, v. HARRIS CAMDEN TERMINAL, Third-Party Defendant. |
| Court | New York Supreme Court |
Plaintiffs Tishman Construction Company of New York (Tishman) and ARE - East River Science Park, LLC (ARE) move, pursuant to CPLR 3212, for summary judgment in their favor on the claims for a judgment declaring that they are entitled to primary coverage as additional insureds under an insurance policy issued by defendant Liberty Mutual Fire Insurance Company (Liberty Mutual), to non party Falcon Steel Co. Inc., (Falcon), and endorsed to include defendant Helmark Steel, Inc. (Helmark) as an insured, and a hearing and determination that the attorneys' fees incurred in an underlying personal injury action by plaintiffs were reasonable, and a money judgment against Liberty Mutual in that amount, or, in the alternative, a judgment declaring thatHelmark breached its contractual duty to procure a commercial automobile liability insurance policy naming plaintiffs as additional insureds.
Liberty Mutual and Helmark oppose the motion on various procedural and substantive grounds, primarily arguing that plaintiffs' papers are defective, the motion is premature, and a conflict of law issue as well as issues of fact preclude summary judgment. As to the alternative relief plaintiffs seek for breach of contract for failure to procure adequate insurance, defendants oppose that part of the motion on the grounds that plaintiffs' proof demonstrates that Helmark did procure the insurance required by the contract.
In the underlying action, Alexander Solovyov (Solovyov) alleges he sustained personal injuries on November 27, 2012, while unloading materials from a tractor-trailer at the site of a construction project (project) in the course of his employment as a steel worker for Falcon, a steel work subcontractor. (see Solovyov v ARE-East River Science Park LLC, Tishman Constr. Corp., Helmark Steel, Inc., Sup Ct, NY County, index no. 153418/2013 [Solovyov action]). Solovyov alleges the accident occurred at the "NYU Medical Center on First Avenue and 33rd Street" in Manhattan (Solovyov action second amended complaint, ¶ 9).
The project where Helmark and Falcon worked is known as the Alexandria Center for Life Science - West Tower, and is bordered on the north and south by East 28th Street and East 29th Street and on the east and west by First Avenue and the FDR Drive Service Road in Manhattan.
ARE is the owner of the project, and hired Tishman as the project construction manager. Pursuant to subcontract dated October 23, 2012 and revised November 26, 2012 and November30, 2012,1 (Helmark subcontract), Tishman retained Helmark as a structural steel subcontractor on the project. Helmark subcontracted a portion of its work to Falcon, Solovyov's employer.
Pursuant to the Helmark subcontract, Helmark was obligated to procure a commercial automobile liability insurance policy naming itself as the primary insured and Tishman and ARE as additional insureds, and covering the use of all owned, non-owned, and hired motor vehicles, with combined bodily injury coverage for injuries occurring during Helmark's work at the project (see Helmark subcontract, ¶ 8, ins. rider § E). The policy that Helmark contends fulfills its contractual obligation is a commercial automobile liability insurance policy issued by Liberty Mutual policy # AS2-631-509429-032 (policy), (see policy, business auto coverage form § II [A] [form CA 00 01 03 10]), which policy, as previously stated, was issued to Falcon, and endorsed to include Helmark as a named insured. Tishman and ARE base this motion seeking a defense and indemnification in the underlying personal injury action, on the grounds that they are additional insureds under this policy.
The Helmark subcontract also includes an indemnification provision that requires Helmark to defend, indemnify, and hold harmless Tishman, as the construction manager, and ARE, as the owner, against all claims and losses, including attorneys' fees and legal and settlement costs and expenses arising out of the acts or omissions by Helmark, or anyone for whom Helmark may be liable, in connection with the work (see Helmark subcontract, ¶ 7).
Plaintiffs contend and defendants do not dispute that oh October 9, 2012, nonparty Construction Risk Partners, LLC (CRP), a licensed insurance producer based in New Jersey,issued two nearly identical Accord certificates of insurance to Helmark and Falcon, which identify the project as the Alexandria Center for Life Science, West Tower, and list Tishman as the certificate holder and as an additional insured/indemnitee and ARE as an additional insured/indemnitee.
On April 19, 2013, following commencement of the Solovyov action against them on April 15, 2013, Tishman and ARE tendered their defense and indemnification obligations to Liberty Mutual, citing the policy terms. By letter dated May 15, 2013, Liberty Mutual accepted tender by Tishman, "subject to the terms and conditions of our policy." Also in that letter, Liberty Mutual refused to accept tender of ARE's obligations, on the ground that the Helmark subcontract does not appear to require Liberty Mutual to cover ARE.
By letter dated September 4, 2014, Liberty Mutual formally declined Tishman's and ARE's tender, on the grounds that the accident location alleged in the Solovyov action complaint is different from the location of the project in the insurance policy, and that there was no evidence that Solovyov's injuries, as alleged, were caused by Helmark's acts or omissions, inasmuch as Solovyov was employed by Falcon, not Helmark. In that letter, Liberty Mutual also contended that, even if Tishman and ARE establish their additional insured status, the available coverage was excess, not primary, pursuant to the terms of the policy's "other insurance" provision. Liberty Mutual based this contention on the policy provision which provided that the policy is excess where the trailer involved in the underlying accident is connected to a tractor that is not owned by the named insureds.
On May 1, 2015, Tishman and ARE commenced this action for a judgment declaring that they are additional insureds under the policy, and that Liberty Mutual must provide them with adefense and indemnification in the Solovyov action, or, in the alternative, that Helmark breached the Helmark subcontract by failing to procure the required automobile liability insurance.
On June 6, 2015, Liberty Mutual filed an answer in which it denies all allegations of wrongdoing, and asserts affirmative defenses based on plaintiffs' lack of coverage under the policy. Subsequently, Tishman and ARE filed the instant summary judgment motion against both Liberty Mutual and Helmark.
During the pendency of the motion, on September 21, 2015, Helmark filed an answer in which it denies all allegations of wrongdoing, and asserts affirmative defenses based on plaintiffs' lack of coverage under the policy.
On that date as well, Liberty Mutual and Helmark together commenced a third-party action against third-party defendant Harris Camden Terminal (Harris Camden), alleging that it is the owner of the tractor-trailer involved in the accident underlying the Solovyov action.
Subsequently, Harris Camden filed a third-party answer in which it denies all allegations of wrongdoing, and asserts affirmative defenses.
As previously stated, Tishman and ARE move for summary judgment on the ground that the undisputed record demonstrates that plaintiffs are each additional insureds and contractual indemnitees under the policy issued by Liberty Mutual, or, in the alternative, that Helmark breached the Helmark subcontract insurance procurement and indemnification/hold harmless provisions. Liberty Mutual and Helmark oppose the motion on the grounds that the moving papers are fatally defective and that the motion is procedurally improper as Helmark had neither appeared nor answered at the time of filing of this motion. Defendants also argue that summaryjudgment is premature as a conflict of law issue exists, specifically, that Delaware law applies and under its law, issues of fact exist regarding coverage and additional issues of fact preclude the determination of coverage at this stage of the proceeding. Defendants further argue that plaintiffs are not insureds under the policy.
Specifically, Liberty Mutual argues that this motion is premature on the ground that discovery is necessary regarding the location of the underlying accident and the manner in which it occurred, before judgment regarding the parties' rights and obligations under the policy may be declared. Liberty Mutual also contends that plaintiffs fail to submit competent evidence, as they submit only an attorney's affirmation.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has made such a showing, the burden shifts to the opposing party to demonstrate, with admissible evidence, facts sufficient to require a trial, or summary judgment will be granted (Winegrad v New York Univ Med Ctr, 64 NY2d 851, 853 [1985]). While Summary judgment is a drastic remedy, it is warranted where the movant demonstrates that no genuine triable issue of material fact exists (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see CPLR 3212).
With respect to declaratory judgments, such as the one plaintiffs seek, it has been held that their general purpose "is to serve some practical end in...
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