Summary
holding "Hard Rock was not entitled to additional insured status" where insurance policy provided coverage to additional insureds when "you have agreed, in writing, in a contract or agreement that another person or organization be added as an additional insured," and the construction agreement requiring additional insured coverage "was not signed at the time of the accident"
Summary of this case from United Specialty Ins. Co. v. Farmers Ins. Exch.Opinion
Nos. 5051, 5052.
July 14, 2011.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered May 3, 2010, dismissing the second fourth-party complaint, and bringing up for review an order, same court and Justice, entered April 9, 2010, which, inter alia, granted the motion of second fourth-party defendant Twin City Fire Insurance Company (Twin City) for summary judgment dismissing the second fourth-party complaint and denied the cross motion of second fourth-party plaintiff Hard Rock Cafe International (USA), Inc. (Hard Rock) for summary judgment declaring that Twin City's disclaimer of coverage is invalid and that Hard Rock is an additional insured under the Twin City insurance policy, unanimously modified, on the law, to the extent of striking therefrom the decretal paragraph dismissing the complaint and substituting therefor a provision declaring that Twin City has no duty to defend and indemnify Hard Rock in the underlying action, and as so modified, affirmed, without costs. Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Steven L. Levitt Associates, P.C., Williston Park (James J. Daw, Jr. of counsel), for Regions Facility Services, Inc., appellant.
Jones Hirsch Connors Bull P.C., New York (Steven H. Kaplan of counsel), for Hard Rock Café International (USA), Inc., appellant.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Before: Concur — Gonzalez, P.J., Tom, Andrias, Moskowitz and Freedman, JJ.
The subject insurance policy issued by Twin City to defendant-appellant Regions Facility Services, Inc. (Regions) provided coverage to additional insureds when "you have agreed, in writing, in a contract or agreement that another person or organization be added as an additional insured." As the construction agreement, which named Hard Rock as an additional insured was not signed by either Regions or Hard Rock, and the work authorization was only signed by Regions, and the signature page, which included a signature line for Hard Rock to sign, was not signed at the time of the accident, we agree with the court that Hard Rock was not entitled to additional insured status ( see Nicotra Group, LLC v American Safety Indem. Co., 48 AD3d 253 [a legal document signed by one party is not considered to be executed as that term is used in an insurance policy]; see also National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 571).
We further find that the policy was not ambiguous as to who was required to sign the agreement. As both the work authorization and the construction agreement contained signature lines meant for Hard Rock and Regions, we find no ambiguity exists as to who was required to sign an agreement naming Hard Rock as an additional insured ( see Rodless Props., L.P. v Westchester Fire Ins. Co., 40 AD3d 253, lv denied 9 NY3d 815).
The judgment is modified to the extent indicated because although the court properly determined that Twin City had no duty to defend and indemnify Hard Rock, dismissal of the second fourth-party complaint was not the appropriate procedural course. Rather, the court should have issued a declaration in favor of Twin City ( see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 ["when a court resolves the merits of a declaratory judgment action against the plaintiff, the proper course is not to dismiss the complaint, but rather to issue a declaration in favor of the defendants"]; Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).
[Prior Case History: 2010 NY Slip Op 30898(U).]