Opinion
603561/06.
Decided on September 24, 2007.
Malapero Prisco, LLP, By: Frank J. Lombardo, Esq., New York, New York., For Plaintiffs.
Carroll, McNulty Kull, L.L.C., By: John P. DeFilippis, Esq., New York, New York, For Defendants.
This declaratory judgment action arises from an underlying personal injury action, in which a journeyman steamfitter sustained injuries when he allegedly slipped and fell in a puddle of water located in the sub-basement of a building located at the IBM Research Park in Hopewell Junction, New York.
Pursuant to CPLR 3212, plaintiffs International Business Machines (IBM), Whiting-Turner Contracting Company (Whiting-Turner) and Liberty Mutual Group (Liberty) move for summary judgment (1) declaring that defendant United States Fire Insurance Company (US Fire) has a duty to defend and indemnify IBM and Whiting-Turner in the underlying action, Carozza v Whiting-Turner Contracting Co., Index No. 109436/2004, Supreme Court, NY County, currently awaiting trial (underlying action); (2) declaring that US Fire has a duty to reimburse Liberty for all past and future attorneys' fees and defense costs; and (3) for summary judgment in their favor on their cause of action against defendant Dynamic Systems, Inc. (Dynamic) for breach of an agreement to procure insurance.
Defendants US Fire and Dynamic cross-move for summary judgment (1) dismissing plaintiffs' complaint; (2) declaring that US Fire has no duty under the Commercial General Liability Policy issued to the Faulkner Group, Inc. (the US Fire policy) to defend or indemnify IBM or Whiting-Turner in the underlying action; and (3) declaring as a matter of law that Dynamic has no common-law or contractual duty to defend or indemnify any of the plaintiffs in the underlying action. In the alternative, defendants contend that plaintiffs' motion for summary judgment should be denied as premature.
BACKGROUND
Robert Carozza, the plaintiff in the underlying action, claims that, on November 16, 2001, he slipped on water and twisted his knee while entering the sub-basement of Building 323 through a truck driveway. Carozza alleges that, at the time of his alleged accident, he was on his way to work as a steamfitter on the second floor of Building 323, one of several buildings located at IBM's research facility and allegedly owned by IBM. IBM had allegedly hired Whiting-Turner to be the general contractor/construction manager on a project which included the reconstruction of the building. In turn, Whiting-Turner allegedly hired several subcontractors to work on the piping and water systems for the building. Whiting-Turner allegedly hired Roy Kay, Inc. (Roy Kay), a mechanical contracting company (apparently no longer in business) to install mechanical piping systems and HVAC equipment at the building. Dynamic, one of several mechanical installation subcontractors, employed Carozza to run black steel pipe to be used for the heating system on the second floor of the building.
Carozza described the sub-basement where his accident occurred as a well-lit large room filled with pipes. At the time of his alleged accident, Carozza claims to have noticed water covering a large area on the concrete floor. Carozza alleged that various mechanical contractors, who were in charge of testing the pipes that they were installing, were responsible for the water on the sub-basement floor. To this effect, Carozza explained that these contractors had workers who were running garden hoses through the piping system to check for and catch leaks in the piping system, and that those hoses emptied into a five-gallon pail which had overflowed all over the floor.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case'" ( Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" ( Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept 2002]).
I. IBM and Whiting-Turner's indemnification claims against Dynamic
A.
IBM and Whiting-Turner seek summary judgment in their favor against Dynamic for reimbursement of their defense costs, including attorneys' fees, incurred in the underlying action, pursuant to Article 9 (e) of Dynamic's contract with Whiting-Turner. However, as US Fire and Dynamic point out, Attachment "A" to Dynamic's contract replaced Article 9 (e) with "Article 14 Indemnification of the IBM General Conditions" found in IBM and Whiting-Turner's General Contract, dated October 31, 2000 (the IBM/Whiting-Turner contract) ( See Lombardo Affirm., Ex E, [Attachment "A"]).
Article 9 (e) of the Dynamic subcontractor agreement, states, in pertinent part:
"The Subcontractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever . . . to all persons, whether employees of a tier of the Subcontractor or otherwise . . . caused by, resulting from, arising out of or occurring in connection with the execution of the Work, or in preparation of the Work, or any extension, modification or amendment to the Work by change order or otherwise. Except to the extent, if any, expressly prohibited by statute and excluding from this indemnity such acts or omissions, if any, of the party indemnified for which it is not legally entitled to be indemnified by the Subcontractor under applicable law, should any claims for such damage or injury . . . be made or asserted, whether or not such claims are based upon Whiting-Turner's or Owner's alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of Whiting-Turner or Owner, the Subcontractor agrees to indemnify and save harmless Whiting-Turner and Owner . . . From and against any and all claims . . . including legal fees and disbursements . . ."
(Lombardo Affirm., Ex E, at SC 5).
Specifically, Article 14 of the IBM/Whiting-Turner contract states, in pertinent part:
"14.1(a)The Contractor shall indemnify, save and hold harmless IBM, its directors and employees, and each of them (individually and collectively referred to as the "Indemnified Persons") from all claims made against the Indemnified Persons for injury . . . damages, losses and costs, including reasonable attorneys' . . . fees and court costs . . . resulting from or alleged to have resulted from (i) the failure of the Contractor or of the Contractor's consultants, representatives, employees or Subcontractors (individually or collectively referred to as the "Contractor's Agents") to perform any of the respective obligations hereunder, or (ii) any act or omission of or alleged to be attributable to the Contractor or the Contractor's Agents.
(b)At the Contractor's sole expense, the Contractor shall defend the Indemnified Persons against any and all claims alleging damage against them for the reasons stated in paragraph (a) above, and shall pay all reasonable attorneys' and witnesses' fees, court costs and other reasonable expenses incurred by the Indemnified Persons therefor, including fees, costs and expenses incurred by IBM because the Contractor failed to indemnify and defend the Indemnified Persons as herein required . . ."
(Lombardo Opp. Affirm., Ex A [IBM/Whiting-Turner Contract], at 47).
Clearly, the indemnification provisions that replaced Article 9 (e) of Dynamic's contract, requires the "Contractor" to indemnify only IBM, not Whiting-Turner. Therefore, Whiting-Turner's claim against Dynamic for contractual indemnification is dismissed.
Although "Contractor" is defined as Whiting-Turner under the IBM/Whiting-Turner contract, "Contractor" is defined differently under Dynamic's agreement with Whiting-Turner. The amendment replacing Article 9 (e) of Dynamic's agreement with Article 14 of the IBM/Whiting-Turner general contract does not specify that the "Contractor" mentioned in Article 14 follows the definition given in the IBM/Whiting-Turner general contract. Thus, "Contractor" must be interpreted in accordance with the definition set forth in Dynamic's agreement with Whiting-Turner. This holds true for "Subcontractor," which is defined in Article 5 of General Conditions of the IBM/Whiting-Turner general contract as any subcontractor of Whiting-Turner, but which is defined in Dynamic's agreement as referring only to Dynamic.
Article 4 of the General Conditions of Construction of the IBM/Whiting-Turner agreement states, "The word Contractor' means the Person (including its employees, officers, directors and principals) engaged as the construction manager [Whiting-Turner] to construct or manage the Work . . ." (Lombardo Opp. Affirm., Ex A).
Under Article 1 (b) of the Dynamic subcontractor agreement, "Contractor" is defined as follows:
"Where the term "Contractor" is used in the Specifications, insofar as it has application to the work required to be done by the Subcontractor [Dynamic] as provided herein, it shall be deemed for the purposes hereof to refer to the Subcontractor [Dynamic]. The term "Contractor" or "General Contractor" when used in the Contract Documents shall be deemed to have reference to the Subcontractor [Dynamic] insofar as it has application to the work covered by this Subcontract"
(Lombardo Affirm., Ex E, at SC 1).
Thus, Article 9 (e), as amended, requires Dynamic to indemnify and defend IBM for Dynamic's failure "to perform any of the respective obligations [under Dynamic's contract with Whiting-Turner], or (ii) any act or omission of or alleged to be attributable to [Dynamic]or the [Dynamic's] Agents." In the underlying action, Carozza alleges that his injuries resulted from the negligent acts of IBM, Whiting-Turner and Roy Kay, and that these defendants had either created or had actual or constructive notice of the dangerous and defective conditions that caused his alleged accident. Carozza has never asserted that his injuries arose out of Dynamic's work on the project.In addition, testimonial evidence in the record indicates that Dynamic had nothing to do with the unsafe condition that caused Carozza's alleged accident in the basement of the building, as all of Dynamic's work took place on the second floor of the building. To this effect, Carozza testified that his work, which entailed running up black steel pipe for a heating system, occurred on the second floor of the building only and not in the basement. Carozza also testified that the water came to be on the basement floor as a result of various mechanical subcontractors testing the pipes with hoses that spilled out onto the floor, and Dynamic did not perform any pipe testing in the basement.IBM and Whiting-Turner apparently argue that, because Carozza is a Dynamic employee, therefore his injuries result from an act attributable to Dynamic under the indemnification provisions. See Lombardo Opp. Affirm. ¶ 10. This argument is untenable. Although Carozza would not have slipped and fallen had he not been working for Dynamic at that project, his status as Dynamic's employee does not constitute an "act" or "omission" attributable to Dynamic.
Therefore, the first cause of action is dismissed, and the fourth cause of action is dismissed as against Dynamic.
B.
Part of US Fire and Dynamic's cross motion seeks a declaration that "Dynamic has no duty . . . in common law . . to defend or indemnify any of the [p]laintiffs." DeFilippis Affirm. ¶ 1. To the extent that US Fire and Dynamic contend that plaintiffs have no claim for common-law indemnification against Dynamic, this cause of action was not pleaded in the complaint. The complaint asserts two causes of action against Dynamic: the first alleges that Dynamic breached a contractual agreement to defend and indemnify IBM and Whiting-Turner; the second alleges that Dynamic breached an agreement to procure insurance. The fourth cause of action, against all defendants, seeks to recover attorneys' fees that plaintiff Liberty Mutual Group has laid out. Therefore, this branch of US Fire and Dynamic's cross motion is denied, because summary judgment cannot be granted dismissing a cause of action that was not pleaded.
II.
US Fire's Duty to Defend IBM and Whiting-Turner under the US Fire Policy
Pursuant to Exhibit A to Dynamic's contract with Whiting-Turner, Dynamic was required to procure general insurance, commercial general liability insurance, and other types of insurance policies with limits as set forth in Exhibit A (Lombardo Affirm., Ex E). The section "Commercial General Liability Insurance" of Exhibit A provides, in pertinent part, "The Whiting-Turner Contracting Company is to be included as an additional insured . . .The contractual liability coverage shall include protection for the subcontractor from claims arising out of the liability assumed under the indemnification provisions of this Agreement" ( Ibid.). The section "Certificates of Insurance" of Exhibit A states, "Whiting-Turner, the Owner and other entities as may be reasonably requested shall be named as an additional insured under these policies of insurance" ( IbId.).
Prior to November 16, 2001, the date of Carozza's alleged accident, Dynamic was listed as a Named Insured under a commercial general liability policy, No. 5410254195, issued by US Fire to Faulkner, effective April 1, 2001 to April 1, 2002. Dynamic allegedly provided Whiting-Turner with a certificate of insurance indicating that Whiting-Turner and IBM are additional insureds under the US Fire policy (Lombardo Affirm., Ex F).
However, US Fire maintains that there is no additional insured endorsement to the US Fire policy naming IBM and Whiting-Turner as additional insureds. US Fire also contends that there is no causal relationship between Dynamic's work and the accident or injuries alleged in the underlying action. IBM and Whiting-Turner contend that the underlying action "arises out of" Dynamic's work.
A.
"[T]he party asserting that someone other than a named insured is an insured under the policy bears the initial burden of submitting proof in evidentiary form that the alleged insured is, in fact, an insured within the meaning of the policy" ( Preferred Mut. Ins. Co. v Ryan, 175 AD2d 375, 378 [3rd Dept 1991]; Thomson v Power Auth. of State of NY, 217 AD2d 495, 496 [1st Dept 1995]). There is no duty to defend when the party asserting coverage is not an insured under the policy ( Seavey v James Kendrick Trucking, 4 AD3d 119, 119 [1st Dept 2004]; National Gen. Ins. Co. v Hartford Acc. Indem. Co., 196 AD2d 414, 415 [1st Dept 1993]).
The certificate of insurance naming Whiting-Turner and IBM as additional insureds is not sufficient to prove coverage. "A certificate of insurance is merely evidence of a contract for insurance, not conclusive proof that the contract exists, and not, in and of itself, a contract to insure" ( Horn Maintenance Corp. v Aetna Cas. Surety Co., 225 AD2d 443, 444 [1st Dept 1996]; see also Tribeca Broadway Assocs., LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198, 200 [1st Dept 2004]; Buccini v 1568 Broadway Assocs., 250 AD2d 466, 469-470 [1st Dept 1998]). Further, when such a certificate of liability insurance contains language to the effect that it is for informational purposes and confers no rights, as in the instant case, the certificate has been held to be insufficient to establish that a party is an additional insured ( Moleon v Kreisler Borg Florman General Constr. Co., 304 AD2d 337, 339 [1st Dept 2003]; Trapani v 10 Arial Way Assocs., 301 AD2d at 647; American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 423 [2nd Dept 1998]).
However, contrary to US Fire and Dynamic's contention, it appears that the US Fire policy contains an additional insured endorsement that may be applicable. In support of their cross motion, US Fire and Dynamic submit a copy of the US Fire policy at issue, which contains an endorsement entitled "Commercial General Liability-Texas" (the Texas endorsement), which states that the US Fire policy is amended as follows:
"Section II — WHO IS AN INSURED is amended to include as an additional insured any person or organization whom you are required to add as an additional insured to this policy by a written contract or written agreement that is:
(1) currently in effect or becoming effective during the term of this policy;
* * *
A. The insurance provided to the additional insured applies as follows:
1. That person or organization is only an additional insured with respect to liability caused by your negligent acts or omissions at or from:
* * *
(b) your ongoing operations performed for the additional insured at the job indicated by written contract or written agreement."
(DeFilippis Affirm., Ex A [Endorsement FM 101.0.1450 (7/98), at 5-6 of 8]).
It should be noted that the record indicates that Dynamic's offices are located in Austin, Texas.
It is unclear whether the Texas endorsement is, in fact, a part of the policy, because the parties did not include the schedule of forms and endorsements of the US Fire policy that would have listed the endorsements that form part of the policy. If the Texas endorsement is part of the policy, then Whiting-Turner and IBM would be considered additional insureds under the US Fire policy, because Dynamic was required to add Whiting-Turner and IBM as additional insureds pursuant to its written contract with Whiting-Turner. Thus, US Fire and Dynamic have not demonstrated, as a matter of law, that Whiting-Turner and IBM are not additional insureds under the US Fire policy.
B.
"The duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim . . ." ( Frontier Insulation Contr. v Merchants Mut. Ins. Co., 91 NY2d 169, 175). If the allegations in the complaint are "even potentially within the language of the insurance policy," the insured must defend the insured ( Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 443; see also Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65; Syvertsen v Great Am. Ins. Co., 267 AD2d 854, 856 [3rd Dept 1999] ["the duty to defend will be found whenever the allegations in the complaint against the insured fall within the scope of the risks taken by the insurer, regardless of how false or groundless those allegations might be (internal quotation marks omitted)"]). If a question of fact exists as to whether the insured's work or negligence caused the injury, or even if a jury ultimately determines that the insured was not negligent, the insurer nevertheless has a duty to defend ( see BP A.C. Corp. v One Beacon Ins. Group, 33 AD3d 116, 120-121 [1st Dept 2006]).
"An insurer may be relieved of its duty to defend only if it can establish, as a matter of law, that there is no possible factual or legal basis upon which it might eventually be obligated to indemnify its insured, or by proving that the allegations fall wholly within a policy exclusion" ( City of New York v Insurance Corp. of NY, 305 AD2d 443, 443-444 [2nd Dept 2003]; Labate v Liberty Mut. Fire Ins. Co., 19 AD3d 652, 652 [2nd Dept 2005]).
Here, the Texas endorsement states that "[t]hat person or organization is only an additional insured with respect to liability caused by your negligent acts or omissions at or from . . . your ongoing operations performed for the additional insured at the job indicted by written contract or written agreement" (DeFilippis Affirm., Ex A [Endorsement FM 101.0.1450 (7/98), at 6 of 8]). Given the specific language of the endorsement, it is not enough for IBM and Whiting-Turner to show merely that the underlying action "arose out of" Dynamic's work, but rather they point to allegations or evidence of Dynamic's negligent acts or omissions.
Assuming that the Texas endorsement is part of the US Fire policy ( see Section II.A., supra), Dynamic's negligence was not alleged. As Dynamic did not perform any work in the basement area of the building where plaintiff's alleged accident took place and Carozza does not allege Dynamic's neligence ( see Section I.A, supra), there is no factual or legal basis to establish that Carozza's injuries arose out of Dynamic's work. Thus, Carozza's injuries are outside the scope of coverage of the additional insured Texas endorsement.
C.
Plaintiffs also maintain that, because US Fire has neither responded to Liberty's tender letters, dated September 14, 2004 and September 20, 2006, requesting the defense and indemnification of IBM and Whiting-Turner in the underlying action, nor disclaimed coverage on any basis at any time, then Insurance Law § 3420 precludes US Fire from disclaiming coverage based on any policy exclusion or condition, such as late notice or any other defense.
Insurance Law § 3420 (d) requires an insurer disclaiming coverage to do so "as soon as is reasonably possible," and the failure to do so in such a timely manner "precludes effective disclaimer" ( see Paul M. Maintenance, Inc. v Transcontinental Ins. Co., 300 AD2d 209, 211 [1st Dept 2002]; Gotham Constr. Co., LLC v United Natl. Ins. Co., 35 AD3d 289, 289-290 [1st Dept 2006]). However, if the claim falls outside the policy's coverage, the insurer is not required to disclaim ( Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188; National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 33 AD3d 570, 571 [1st Dept 2006]; New York Mut. Underwriters v Baumgartner, 19 AD3d 1137, 1140 [4th Dept 2005]). Here, as the claim fell outside of the policy's coverage, US Fire was not required to disclaim as to coverage that did not exist ( see Tribeca Broadway Assocs. LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198, 200-201 [1st Dept 2004]).
The Court of Appeals explained:
"Disclaimer pursuant to section 3420 (d) is unnecessary when a claim falls outside the scope of the policy's coverage portion. Under such circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed"
( Worcester Ins. Co., 95 NY2d at 188; see also National Union Fire Ins. Co. of Pittsburgh, PA v Utica First Ins. Co., 6 AD3d 681, 682 [2nd Dept 2004]).
Accordingly, the branches of plaintiffs' motion for summary judgment declaring that US Fire has a duty to indemnify and hold harmless IBM and Whiting-Turner in the underlying Carozza action, and declaring that Liberty is entitled to reimbursement from US Fire for all past and future attorneys' fees and defense costs incurred in defending IBM and Whiting-Turner in that underlying action, are denied. The branch of US Fire and Dynamic's cross motion for summary judgment declaring that US Fire has no duty under the US Fire policy to defend or indemnify IBM or Whiting-Turner in the underlying action is granted.
III Breach of Contract against Dynamic for Failure to Procure Insurance
Because IBM and Whiting-Turner are not entitled to coverage under the US Fire policy, plaintiffs maintain that defendant Dynamic is therefore liable to IBM and Whiting-Turner for breach of contract for failure to procure insurance on their behalf, as required under the terms of the Dynamic subcontractor agreement. As discussed in Section I.A., supra, Exhibit A to Dynamic's contract with Whiting-Turner, under the section "Certificates of Insurance," provides that
"Subcontractor shall provide The Whiting-Turner Company with certificates of insurance evidencing the required insurance coverage before the subcontractor's work under this agreement is begun.
* * *
Whiting-Turner, the Owner and other entities as may be reasonably requested shall be named as an additional insured under these policies of insurance"
(Lombardo Affirm., Ex E).
US Fire and Dynamic argue that the section above conflicts with another section of Exhibit A, "Commercial General Liability Insurance," which states that, "The Whiting-Turner Contracting Company is to be included as an additional insured." Because the former section requires IBM and Whiting Turner to be both named as additional insured, whereas the latter section does not, US Fire and Dynamic therefore argue that Exhibit A is ambiguous as to whether Dynamic should have named IBM as an additional insured. To reconcile this purported ambiguity, US Fire and Dynamic therefore interpret Exhibit A to require Dynamic to name IBM as an additional insured only "as may be reasonably requested" (Lombardo Affirm., Ex E).
This strained interpretation is unconvincing. A reasonable interpretation of the words "as may be reasonably requested" is that this phrase modifies "other entities," the words immediately preceding the phrase, because it would not be possible to specifically name "other entities" as additional insureds without having received a request bearing the identity of those entities. In any event, a certificate of insurance was issued to Whiting-Turner and IBM as additional insureds to the policy, which would be evidence of a reasonable request that both be named as additional insureds. See Lombardo Affirm., Ex G. Moreover, even under US Fire and Dynamic's interpretation, Dynamic would still be required to name Whiting-Turner as an additional insured under the commercial general liability policy, which Dynamic does not claim it has done.
The Texas endorsement to the US Fire policy recognizes as additional insureds persons or organizations, such as IBM and Whiting-Turner, whom Dynamic is required to add as additional insureds by a written contract or agreement, but only for "negligent acts or omissions at or from . . . your ongoing operations performed for the additional insured at the job indicated by written contract or written agreement" (DeFilippis Affirm., Ex A [Endorsement FM 101.0.1450 (7/98), at 6 of 8]). In light of the existence of the Texas endorsement, which may be part of the US Fire policy, an issue of fact arises as to whether Dynamic fulfilled its contractual obligation to procure insured on IBM and Whiting-Turner's behalf. Therefore, the branch of IBM and Whiting-Turner's motion for summary judgment against Dynamic in its favor on the second cause of action is denied. The branch of US Fire and Dynamic's cross motion to dismiss the second cause of action is denied.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that plaintiffs International Business Machines, Whiting-Turner Contracting Company (Whiting-Turner) and Liberty Mutual Group's motion, pursuant to CPLR 3212, for summary judgment declaring that (1) defendant United States Fire Insurance Company has a duty to defend and indemnify IBM and Whiting-Turner in the underlying Carozza action; (2) declaring that US Fire has a duty to reimburse Liberty for all past and future attorneys' fees and defense costs; and (3) for an order granting IBM and Whiting-Turner summary judgment in their favor on their breach of contract as against defendant Dynamic Systems, Inc. for failure to procure insurance claim is denied; and it is further
ORDERED that defendants US Fire and Dynamic's cross motion, pursuant to CPLR 3212, for summary judgment (1) dismissing plaintiffs' complaint as against them; (2) declaring as a matter of law that US Fire has no duty under the Commercial General Liability Policy issued to the Faulkner Group, Inc. (Faulkner) (the US Fire policy) to defend or indemnify IBM or Whiting-Turner in the underlying action; (3) declaring as a matter of law that Dynamic has no common-law or contractual duty to defend or indemnify any of the plaintiffs in the underlying action is granted to the extent that the first and fourth causes of action are severed and dismissed, and the Clerk is directed to enter judgment accordingly; and it is further
ADJUDGED and DECLARED that the United States Fire Insurance Company has no duty under the Commercial General Liability Policy issued to the Faulkner Group, Inc., policy no. 5410254195, to defend or to indemnify IBM and Whiting-Turner in Carozza v Whiting-Turner Contracting Co., Index No. 109436/2004, Supreme Court, NY County; and it is further
ORDERED that the remainder of the action, the second cause of action alleging breach of an agreement to procure insurance, shall continue.
This order constitutes the decision, order and judgment of the Court.