Summary
In Podbielski, a New York Appellate Division court held that "defendant insurer's refusal to indemnify plaintiffs' project owner and construction manager is no basis for declaring, at this [summary judgment] juncture, that the decedent's employer breached its agreement with the construction manager to procure liability insurance."
Summary of this case from Komulainen v. Montenay Power CorporationOpinion
October 6, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Although the decedent's death is covered under defendant insurer's policies with defendant decedent's employer, naming plaintiffs' project owner and construction manager as additional insureds ( see, O'Connor v. Serge El. Co., 58 N.Y.2d 655, mot to amend remittitur granted 58 N.Y.2d 799), defendant insurer's duty to indemnify, under these policies, is not coextensive with its duty to defend and is not triggered until there has been a determination of liability on the part of its insureds ( see, Frontier Insulation Contrs. v. Merchants Mut. Ins. Co., 91 N.Y.2d 169, 178). Obviously, defendant insurer's refusal to indemnify plaintiffs' project owner and construction manager is no basis for declaring, at this juncture, that the decedent's employer breached its agreement with the construction manager to procure liability insurance ( cf., Garcia v. Great Atl. Pac. Tea Co., 231 A.D.2d 401).
Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.