Summary
holding that the language in the certificate of insurance providing "that ‘this certificate is issued as a matter of information only and confers no rights upon the certificate holder this certificate does not amend, extend or alter the coverage afforded by the policies,’ was insufficient to establish additional insured status under the policy"
Summary of this case from Lopez v. Rutgers Cas. Ins. Co.Opinion
10-06-2016
THREE BOROUGHS, LLC, Plaintiff–Respondent–Appellant, v. ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, Defendant–Appellant–Respondent.
Churbuck Calabria Jones & Materazo PC, Hicksville (Nicholas P. Calabria of counsel), for appellant-respondent. Tese & Milner, New York (Michael M. Milner of counsel), for respondent-appellant.
Churbuck Calabria Jones & Materazo PC, Hicksville (Nicholas P. Calabria of counsel), for appellant-respondent.
Tese & Milner, New York (Michael M. Milner of counsel), for respondent-appellant.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered January 22, 2016, which denied defendant insurer's motion for summary judgment seeking a declaration that plaintiff is not a named insured or additional insured under the policy issued to plaintiff's general contractor, and that defendant is not obligated to defend or indemnify plaintiff in the underlying personal injury action, and denied plaintiff's cross motion for summary judgment seeking a coverage declaration, or alternatively, a declaration that the defendant insurer is estopped from disclaiming coverage, unanimously modified, on the law, to grant defendant insurer's motion for summary judgment to the extent of declaring that it has no obligation to defend or indemnify plaintiff in the underlying personal injury action, and otherwise affirmed, without costs. The Clerk is directed to enter judgment so declaring.
Since “[d]efendant insurers established that the blanket additional insured endorsement in the policy issued to plaintiffs' maintenance contractor provided coverage to any person or organization ‘that the insured is required by written contract to name as an additional insured,’ and that the contract between plaintiffs and the maintenance contractor did not contain such a requirement,” plaintiff is not an additional insured under the policy (West 64th St., LLC v. Axis U.S. Ins., 63 A.D.3d 471, 471–472, 882 N.Y.S.2d 22 [1st Dept.2009] ; ALIB, Inc. v. Atlantic Cas. Ins. Co., 52 A.D.3d 419, 419, 861 N.Y.S.2d 28 [1st Dept.2008] ; Nicotra Group, LLC v. American Safety Indem. Co., 48 A.D.3d 253, 254, 850 N.Y.S.2d 455 [1st Dept.2008] ). Moreover, the certificate language stating that “this certificate is issued as a matter of information only and confers no rights upon the certificate holder [and that] this certificate does not amend, extend or alter the coverage afforded by the policies,” was insufficient to establish additional insured status under the policy (ALIB, Inc., 52 A.D.3d at 419, 861 N.Y.S.2d 28 ; Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 A.D.2d 337, 339, 758 N.Y.S.2d 621 [1st Dept.2003] ; American Ref–Fuel Co. of Hempstead v. Resource Recycling, 248 A.D.2d 420, 423–424, 671 N.Y.S.2d 93 [2d Dept.1998] ).
The record establishes that the contractor's broker lacked the authority to bind the carrier (Tribeca Broadway Assoc. v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198, 199–200, 774 N.Y.S.2d 11 [1st Dept.2004] ). Thus, the defendant insurer here cannot be estopped on the basis of an inadequate disclaimer, since “[a]n additional insured endorsement is an addition, rather than a limitation, of coverage” (National Abatement Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 33 A.D.3d 570, 571, 824 N.Y.S.2d 230 [1st Dept.2006], citing Consolidated Edison Co. of N.Y. v. Hartford Ins. Co., 203 A.D.2d 83, 84, 610 N.Y.S.2d 219 [1st Dept.1994] ; see also B.R. Fries & Assoc., LLC v. Illinois Union Ins. Co., 89 A.D.3d 619, 621, 934 N.Y.S.2d 10 [1st Dept.2011] ; Hunter Roberts Constr. Group, LLC v. Arch Ins. Co., 75 A.D.3d 404, 407, 904 N.Y.S.2d 52 [1st Dept.2010] ). In any event, plaintiff is unable to demonstrate prejudice, as the disclaimer letter clearly stated that plaintiff did not qualify as an additional insured under the policy, and set forth the endorsement language upon which the insurer relied (see Bellefonte Re–Insurance Co. v. Volkswagenwerk AG, 102 A.D.2d 753, 476 N.Y.S.2d 890 [1st Dept.1984] ).
RENWICK, J.P., RICHTER, MANZANET–DANIELS, FEINMAN, KAPNICK, JJ., concur.