Trump-Equitable Fifth Ave. Co. v. H.R.H. Const. Corp., TRUMP-EQUITABLE
| Decision Date | 07 February 1985 |
| Docket Number | TRUMP-EQUITABLE |
| Citation | 485 N.Y.S.2d 65,106 A.D.2d 242 |
| Parties | FIFTH AVENUE COMPANY, a joint venture partnership, Plaintiff-Respondent, v. H.R.H. CONSTRUCTION CORPORATION, Dic-Underhill Industries, a joint venture, Alumni Plumbing and Heating Corporation, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Jozef K. Goscilo, New York City, of counsel (Langan & Levy, New York City, attorneys), for defendant-appellant H.R.H. Const.
Amy Greenberg, Brooklyn, of counsel (F.V. Mina, New York City, attorney), for defendant-appellant Underhill.
William H. Morris, Jericho, of counsel (Gerald P. McMorrow and Steven A. Costantino, Jericho, with him on the brief; Morris, Graham, Stephens & McMorrow, Jericho, attorneys), for defendant-appellant Alumni Plumbing.
Thomas M. Smith, Brooklyn, of counsel (Gwertzman, Pfeffer, Toker & Lefkowitz, New York City, attorneys), for plaintiff-respondent.
Before MURPHY, P.J., and SULLIVAN, ROSS and CARRO, JJ.
Defendant H.R.H. Construction Corp. (HRH) was the general contractor for the Trump Tower construction project under a contract with the owner, Trump-Equitable Fifth Avenue Company (Trump-Equitable). Pursuant to contracts with HRH, defendants Dic-Underhill Industries and Alumni Plumbing and Heating Corp. were the concrete superstructure and plumbing and fire protection subcontractors respectively.
On January 29, 1982, a fire on the 27th floor of the building, then under construction, caused extensive damage. Aetna Insurance Company, which had written a builder's all risk insurance policy in February, 1981, issued two checks to Trump-Equitable and other named insureds in the total amount of $1,788,106. This represented the total amount of the property loss occasioned by the fire. In December, 1982, this action was instituted in the name of Trump-Equitable for the real party in interest, Aetna, as subrogee. The complaint, which sounds in negligence, breach of contract and breach of warranty, essentially alleges that the fire was caused through the fault of the defendants and seeks damages of $1,688,712 for each of twelve causes of action.
Defendants moved for summary judgment based upon the waiver of subrogation clause contained in the prime contract between HRH and Trump-Equitable. This contract consisted of two relevant parts: a typewritten agreement, and a printed American Institute of Architects (AIA) document entitled "General Conditions for the Contract of Construction." These General Conditions were incorporated by reference into the typewritten agreement, which additionally provided that both documents were intended to be A similar priority provision was added to the printed General Conditions.
Both the printed and the typewritten portions of the contract contained provisions concerning the procurement of insurance. The General Conditions required the owner to purchase and maintain property insurance for damages to the construction project to its full insurable value. Such insurance was to include the interests of the general contractor and subcontractors. The General Conditions also included the following waiver of subrogation clause:
"The Owner and Contractor waive all rights against (1) each other and the Subcontractors ... for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Paragraph 11.3 or any other property insurance applicable to the Work, except such rights as they may have to the proceeds of such insurance held by the Owner as trustee."
The typewritten portion of the agreement provided that the contractor furnish workers' compensation, public liability, comprehensive auto liability, disability and "owners' protective insurance in the name of the Owner, which shall provide bodily injury and property damage on an occurrence basis." Coverage provided by this insurance was not intended to release or exclude the contractor's obligation to indemnify and hold the owner harmless "against all liability, claims, loss, costs, damages and expenses ... on account of injury or death to any person ... or damage to property ..." not caused by the sole negligence of the owner.
Although the defendants did not raise the waiver of subrogation clause as an...
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