HNRK Coverage Corner
On December 26, 2019, the First Department issued a decision in Fireman’s Fund Ins. Co. v. State Nat’l Ins. Co., 2019 NY Slip Op 09399, holding that a property owner was entitled to coverage for a personal injury lawsuit as an additional insured under a contractor’s CGL Policy, even though the injuries were not caused by the contractor’s negligence.
This case involves a frequently-litigated policy provision in construction-related insurance coverage matters: the blanket “additional insureds” endorsement to a contractor’s liability policy. (See our previous posts on this endorsement). Construction project owners often require contractors to procure liability coverage for “upstream” parties (e.g., construction managers or property owners). The contractor accomplishes this by purchasing a blanket additional insured endorsement covering any party the insured is contractually obligated to name as an additional insured. Thus, determining who qualifies as an additional insured requires examining both the language of the endorsement and the underlying contracts.
In this case, the contractor’s additional insured endorsement provided coverage for “any person or organization to whom the Named Insured has agreed by written contract to provide coverage, but only with respect to operations performed by or on behalf of the Named Insured.”. The underlying injury lawsuit involved a woman who fell while walking through a passageway where the contractor had performed renovation work. It was ultimately determined that the injuries were not connected to any negligence by the contractor. However, as the First Department explained, citing the Court of Appeals decision in Worth Constr. Co., Inc. v. Admiral Ins. Co., 10 N.Y.3d 411 (2008), “generally, the absence of negligence, by itself, is insufficient to establish that an accident did not arise out of an insured's operations”; “the focus of a clause such as the additional insured clause here is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained.” (Id. at 416.) The Court concluded that the contractor’s policy provided additional insured coverage for the property owner because “there was a connection between the accident and the named insured's operations” – “the plaintiff slipped and fell on a walkway that had been waterproofed by Upgrade, although her fall was not caused by any negligence” on the part of the contractor.
As is always the case, the scope of coverage depends on the language of the policy. Other CGL policies provide narrower additional insured coverage than the policy at issue in this case. For example, in a case previously covered on this blog, the additional insureds endorsement in the contractor’s policy applied only with respect to liability for ‘bodily injury’ . . . caused in whole or in part by” the subcontractor’s acts or omissions. (Emphasis added). Under New York law, the phrase “caused in whole or in part” requires proximate causation of the injuries. See Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313 (2017). Thus, additional insured coverage under that endorsement was not triggered unless the contractor proximately caused the underlying injury.
- Partner
Bradley Nash represents policyholders in insurance disputes and other parties in complex commercial litigation in state and federal courts in New York and across the country. Brad focuses his practice on insurance recovery for ...
Search Blog
Recent Posts
- Brad Nash Quoted in Law360 Insurance Authority on Chisholm’s-Village Plaza LLC v. Cincinnati Insurance Co.
- Brad Nash and Milan Sova Author Article in ABA Journal on Wildfire Coverage and Occurrence Disputes
- HNRK Insurance Recovery Partners Author Article for Chambers 2025 Global Practice Guide
- The Coverage Corner is Vindicated! North Carolina Supreme Court Rules That Covid-19 Business Interruption Losses Are Covered by Commercial Property Insurance Policy
- Court Rejects Excess Insurer’s Attempt to Avoid Coverage Based on “Improper Erosion” of Primary Policy Limits
- HNRK in the New York Law Journal on the “Expected or Intended” Exclusion Standard Coverage Defense
- Delaware Bankruptcy Court Rules That Qui Tam Action Filed Under Seal—and Never Served—Triggers D&O Policy’s Prior and Pending Litigation Exclusion
- “Related Acts” and the Claims Made Policy—The Policy Provision that “Cannot Be Applied Literally”
- California Court Rules that FTC’s Civil Investigative Demand is Not a Covered Claim Under Technology Errors and Omissions Policy
- Delaware Court Dismisses D&O Coverage Action as Premature Under Policy’s “No Action” Clause
Popular Categories
- Insurance Coverage
- CGL Policies
- Policy Exclusions
- Duty to Defend
- D&O Policies
- Damages
- Occurrence/Accident
- E&O Policies
- Additional Insured Endorsement
- Related Claims
- Business Interruption Coverage
- Rules of Interpretation
- Construction
- Bad Faith Claims Handling
- Indemnification and Advancement
- Cyber Coverage
- COVID-19
- Pollution Exclusion
- Duty to Cooperate
- Advertising Injury
- Personal and Advertising Injury
- Insurance Brokers
- Excess Insurance
- Confict of Laws
- Discovery/Disclosure
- Appraisal
- Attorney Fees
- Assignment of Claims
- Covered Loss
- Disability discrimination
- Implied Covenant of Good Faith and Fair Dealing
- Notice
- Privilege/Work Product
- Intellectual Property
- Priority of Coverage
- Contracts
- Professional Malpractice
- Intervention/Joinder
- Rescission
- Subrogation
- Settlements
- General Business Law
- Unfair Claims Settlement Practices
Archives
- May 2025
- February 2025
- December 2024
- November 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- September 2023
- August 2023
- June 2023
- May 2023
- April 2023
- March 2023
- January 2023
- December 2022
- September 2022
- May 2022
- April 2022
- March 2022
- November 2021
- June 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018