Summary
holding that "Bid Proposal Document" evidencing agreement in which contractor was obligated to name owner as additional insured satisfied policy's "written contract" requirement
Summary of this case from J.T. Magen & Co. v. Atl. Cas. Ins. Co.Opinion
5399 Index 153327/15
01-09-2018
NETHERLANDS INSURANCE COMPANY, Plaintiff–Appellant, v. ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, Defendant–Respondent.
Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellant. Melito & Adolfsen P.C., New York (S. Dwight Stephens of counsel), for respondent.
Jaffe & Asher LLP, New York (Marshall T. Potashner of counsel), for appellant.
Melito & Adolfsen P.C., New York (S. Dwight Stephens of counsel), for respondent.
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
Order and judgment, (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered September 13, 2016, granting defendant's motion for summary judgment to the extent of declaring that defendant is not obligated to defend and indemnify Bangor Realty, LLC, plaintiff's insured, in the underlying personal injury action, and denying plaintiff's motion for summary judgment for a declaration in its favor, unanimously reversed, on the law, without costs, defendant's motion denied, plaintiff's motion granted to the extent of declaring that defendant is obligated to defend and indemnify Bangor, and the matter remanded for further proceedings.
The additional insured endorsement to the subject general liability policy affords coverage to "[a]ny entity required by written contract ... to be named as an insured." The "Bid Proposal Document" for the construction project in which the underlying personal injury action arose is such a written contract. The proposal names the parties and the "Total agreed
price," contains the dated signatures of the parties immediately below the agreed price, and incorporates by reference "the approved plan for the entire project," stating that all work is to be completed in strict accordance with the approved plan and with the plans and specifications prepared by the architect. Although the parties may have intended to execute a more formal agreement later, the proposal constitutes a binding agreement (see Bed Bath & Beyond Inc. v. IBEX Constr., LLC, 52 A.D.3d 413, 860 N.Y.S.2d 107 [1st Dept. 2008] ; Zurich Am. Ins. Co. v. Endurance Am. Speciality Ins. Co., 145 A.D.3d 502, 43 N.Y.S.3d 40 [1st Dept. 2016] ), and it requires the contractor, defendant's insured, to obtain a policy naming the owner (Bangor) as an additional insured. Thus, Bangor is, in the terms of the policy endorsement, "[a]n[ ] entity required by written contract ... to be named as an insured" (compare Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 143 A.D.3d 146, 151, 38 N.Y.S.3d 1 [1st Dept. 2016] [where policy endorsement provides coverage to " ‘any person or organization with whom you have agreed to add as an additional insured by written contract,’ " it "requires that the named insured execute a contract with the party seeking coverage as an additional insured"] [emphasis added]; AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc., 102 A.D.3d 425, 426, 961 N.Y.S.2d 3 [1st Dept. 2013] ["policies containing broader language have been found to allow for an agreement naming an additional insured without an express contract between the parties"] ).