Summary
finding that third-party was entitled to coverage as additional insured where Prime Contract was incorporated by reference into subcontract
Summary of this case from Damon G. Douglas Co. v. Arch Specialty Ins. Co.Opinion
December 7, 1998
Appeal from the Supreme Court, Westchester County (DiBlasi, J.)
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Gaetano Binasco, an employee of the third-party defendant Construction Associates, Inc. (hereinafter Construction Associates), was injured while working at a construction site owned by the defendant third-party plaintiff American Telephone Telegraph Company (hereinafter ATT). ATT entered into a general construction contract (hereinafter the Prime Contract) with Construction Associates, pursuant to which Construction Associates was obligated to name ATT as an additional insured. Thereafter, Construction Associates entered into a subcontract with the appellant, Break-Away Demolition Corp. (hereinafter Break-Away) to undertake the demolition portion of the project. The plaintiff's brought this action to recover damages from ATT and Break-Away. Although Break-Away's insurer, Homestead Insurance Company (hereinafter Homestead), had named ATT as an additional insured under the Comprehensive General Liability policy issued to Break-Away, Homestead declined coverage to ATT. ATT moved for summary judgment, inter alia, to compel Break-Away to defend and indemnify it in the action, and the court granted that branch of the motion.
Break-Away contends that since its subcontract with Construction Associates did not expressly require Break-Away to name ATT as an additional insured in the Homestead Comprehensive General Liability policy, ATT was not an intended third-party beneficiary entitled to indemnification. It is well settled, however, that "[t]hird persons who are covered under a liability insurance policy and are thus entitled to maintain an action on the policy must be ascertained from the intention of the parties to the policy, as determined from the four corners of the policy itself ( I.S.A. in N.J. v. Effective Sec. Sys., 138 A.D.2d 681, 682; see, Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27, 34, affd 49 N.Y.2d 924; cf., Tilden Commercial Alliance v. 2nd Edition Originals, 242 A.D.2d 702). It is the terms of the Homestead policy, therefore, and not the subcontract between Construction Associates and Break-Away, which must be examined to determine the issue of indemnification. As it is undisputed that ATT was expressly named as an additional insured under the terms of the Homestead policy, the court did not err in granting that branch of ATT's motion which was for summary judgment to compel Break-Away to defend and indemnify it in the action.
Break-Away's argument that it did not intend to name ATT as an additional insured is unsupported by the record. Pursuant to Article 1 of the subcontract between Construction Associates and Break-Away, the Prime Contract was incorporated by reference into the subcontract documents. The insurance clause of the Prime Contract obligated Construction Associates to require all of its subcontractors to maintain Comprehensive General Liability insurance which expressly designated ATT as an additional insured. Moreover, the subcontract provides for indemnification to ATT as the property owner, as well as to Construction Associates as the general contractor, in the event of personal or property damage.
Miller, J. P., Thompson, Pizzuto, McGinity and Luciano, JJ., concur.