Travelers Prop. Cas. Co. of Am. v. Wesco Ins. Co.
| Decision Date | 08 February 2022 |
| Docket Number | 20-CV-9888 (VEC) |
| Citation | 585 F.Supp.3d 463 |
| Parties | TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiff, v. WESCO INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Amy Christine Gross, Reid & Associates, Hartford, CT, for Plaintiff.
Max W. Gershweir, Law Office of Max W. Gershweir, New York, NY, for Defendant.
Plaintiff Travelers Property Casualty Company of America ("Travelers") has sued Wesco Insurance Company ("Wesco") seeking a declaratory judgment and monetary damages. See Compl., Dkt. 1. Plaintiff has moved for partial summary judgment, see Pl. Mem. of Law, Dkt. 30; Wesco opposed Plaintiff's motion and cross-moved for summary judgment on Plaintiff's claims for declaratory judgment, see Def. Mem. of Law, Dkt. 35. Plaintiff opposed Defendant's cross-motion. See Pl. Mem. of Law, Dkt. 37. For the reasons discussed below, both motions are GRANTED in part and DENIED in part.
This case involves an intra-insurer dispute over insurance coverage for two personal injury actions pending in the Supreme Court of New York County. See Onofrio Mazzurco et al. v. Broadway 52nd L.P. and Robert B. Samuels, Inc. , Index Nos. 157381/2017 and 159872/2018 (the "Underlying Actions").
The parties agree on all relevant facts.1 Broadway 52nd LP ("Broadway") hired JT Magen & Co. ("JT Magen") as the general contractor for construction work at 1675 Broadway, New York, New York. The contract between Broadway and JT Magen required JT Magen to include Broadway as an additional insured under its commercial general liability policy on a primary and non-contributory basis. Plaintiff Travelers is JT Magen's commercial general liability insurer. As required by contract, JT Magen included Broadway as an additional insured on that policy.
By purchase orders, JT Magen hired Robert B. Samuels, Inc. ("RBS") as a subcontractor on the job. The purchase orders required RBS to include Broadway and JT Magen as additional insureds under its commercial general liability policy on a primary and non-contributory basis. Defendant Wesco is the commercial general liability insurer for RBS. As required by its contract, RBS named Broadway and JT Magen as additional insureds on its commercial general liability policy.
Onofrio Mazzurco, an employee of JT Magen, was allegedly injured while working at 1675 Broadway. Mr. Mazzurco has sued Broadway and RBS in New York Supreme Court to recover damages for his injuries.
Hanover Insurance Group, which insures Broadway, tendered to JT Magen and Travelers Broadway's defense and indemnification in the Underlying Actions based on Broadway's status as an additional insured on the Travelers Policy. Travelers has acknowledged its duty to defend and indemnify Broadway and has demanded that Wesco also defend and indemnify Broadway. Although Wesco initially refused Travelers’ tender on behalf of Broadway, eventually Wesco acknowledged its duty to defend Broadway in the Underlying Actions.2
The primary dispute between the insurance companies is whether they are both primary on the risk or whether Travelers’ policy is excess to the Wesco policy. Travelers argues that "other insurance" language in its policy makes clear that Travelers’ coverage is excess to any other insurance as to which Broadway is an additional insured, as it is on the Wesco policy. See Pl. Mem. of Law at 1, 10–12; Compl. ¶ 10. Travelers is seeking a declaration that: (1) Wesco has a duty to defend and indemnify Broadway as an additional insured on its policy; (2) the coverage provided by Wesco is primary; and (3) Travelers’ obligations to Broadway are excess and non-contributory to Wesco's with respect to the Underlying Actions. See Compl. ¶ 32; Pl. Mem. of Law at 1–2. Wesco argues that its duty to Broadway is co-primary and on a proportional-shares basis with Travelers. See Def. Mem. of Law at 1, 10–16.3
Travelers issued a Commercial General Liability and Employee Benefits Liability Insurance Policy to JT Magen (the "Travelers Policy"). The Travelers Policy contains an endorsement for Additional Insureds (the "Scheduled Person Endorsement"). The schedule of additional insureds includes Broadway, and the Scheduled Person Endorsement provides that "Who is an insured" in Section II of the policy is amended so that a "person or organization shown in the Schedule [is an insured], but only with respect to liability arising out of [JT Magen's] ongoing operations performed for that insured." Pl. Rule 56.1 Statement ¶ 3 ); Def. Rule 56.1 Statement ¶ 11 (same).
The Blanket Additional Insured endorsement (the "Blanket Additional Insured Endorsement") also amends the definition in Section II of "Who is an insured." This endorsement provides that The Blanket Additional Insured Endorsement further provides, in relevant part:
Any coverage provided by this endorsement to an additional insured shall be excess over any other valid and collectible insurance available to the additional insured ... unless a written contract or written agreement ... specifically requires that this insurance apply on a primary or non-contributory basis. When this insurance is primary and there is other insurance available to the additional insured from any source, we will share with that other insurance by the method described in the policy.
Def. Rule 56.1 Statement ¶ 11 ).
The final endorsement relevant to this dispute is the Other Insurance amendment (the "Other Insurance Amendment"). This amendment modifies the first part of Section IV, paragraph 4 (Commercial General Liability Conditions) and provides that if there is an insured loss under coverages A and B,5 Traveler's obligations are "excess over any of the other insurance, ... that is available to the insured when the insured is added as an additional insured under any other policy, including any umbrella or excess policy." Pl. Rule 56.1 Statement ¶ 4 ); see also Def. Rule 56.1 Statement ¶ 11 (same).
Wesco issued a commercial general liability insurance policy to RBS ("the Wesco Policy"). The Wesco Policy contains an endorsement for Additional Insureds (the "Scheduled Person Endorsement"). The schedule of additional insureds includes Broadway and JT Magen. The Scheduled Person Endorsement provides that "Who is an insured" in Section II of the policy is amended so that a "person or organization shown in the Schedule [is an insured]," but only with respect to "liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part by: (1) [RBS's] acts or omissions; or (2) the acts or omissions of those acting on [its] behalf." Pl. Rule 56.1 Statement ¶ 7 (citing Gross Decl. at Ex. B at 157); Def. Rule 56.1 Statement ¶ 8 (same).
With respect to other insurance, Wesco's main Commercial General Liability coverage form provides that The coverage form further provides:
If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of all insurers.
Pl. Rule 56.1 Statement ¶ 8 (citing Gross Decl. at Ex. B at 28); Def. Rule 56.1 Statement ¶ 8 (same).
When parties cross-move for summary judgment, the Court analyzes the motions separately, "in each case construing the evidence in the light most favorable to the non-moving party." Wandering Dago, Inc. v. Destito , 879 F.3d 20, 30 (2d Cir. 2018) (citation omitted). Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotation marks and citation omitted).
While the Court must construe the facts in the light most favorable to the non-moving party, "a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Fed. Trade Comm'n v. Moses , 913 F.3d 297, 305 (2d Cir. 2019) (internal quotation marks and citation omitted).
Travelers moves for summary judgment with respect to its claim for a declaratory judgment that: (1) Wesco has a duty to defend and, if necessary, indemnify Broadway in the Underlying Actions; and (2) the coverage provided by the Wesco Policy is primary. See Pl. Mem. of Law at 1–2, 8–10; Compl. ¶ 32. Wesco does not dispute that it owes a duty to defend Broadway or that its policy provides primary coverage to Broadway. See Def. Mem. of Law at 1, 10, 13. Accordingly, Plaintiff is entitled to summary judgment on both points. Wesco has a duty to defend and, if necessary, to indemnify...
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