Summary
distinguishing Crespo on the same grounds
Summary of this case from Starr Indem. & Liab. Co. v. Excelsior Ins. Co.Opinion
11-29-2016
ASPEN SPECIALTY INSURANCE COMPANY, Plaintiff–Respondent, v. IRONSHORE INDEMNITY INCORPORATED, Defendant–Appellant, Transel Elevator, Inc., Defendant.
Vogrin & Frimet LLP, New York (George J. Vogrin of counsel), for appellant. Connell Foley LLP, New York (William D. Deveau of counsel), for respondent.
Vogrin & Frimet LLP, New York (George J. Vogrin of counsel), for appellant.
Connell Foley LLP, New York (William D. Deveau of counsel), for respondent.
FRIEDMAN, J.P., SWEENY, SAXE, KAPNICK, GESMER, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 9, 2015, which, to the extent appealed from, granted plaintiff's cross motion for summary judgment declaring that, with respect to the underlying personal injury action, its named insured is an additional insured under the policy issued by defendant Ironshore Indemnity Incorporated to defendant Transel Elevator, Inc., unanimously affirmed, with costs.
While the policy issued by Ironshore to Transel refers, with respect to coverage for additional insureds, to “losses ‘caused by’ [Transel's] ‘acts or omissions' or ‘operations,’ the existence of coverage does not depend upon a showing that [Transel's] causal conduct was negligent or otherwise at fault” (Burlington Ins. Co. v. NYC Tr. Auth., 132 A.D.3d 127, 135, 14 N.Y.S.3d 377 [1st Dept.2015] [citing cases], lv. granted 27 N.Y.3d 905, 2016 WL 2354739 [2016] ). Thus, plaintiff's named insured (the hotel) is entitled to coverage as an additional insured under the Ironshore policy with respect to the claim of injuries sustained by Transel's employee when he lost his footing on the hotel stairway, which resulted from his “acts or omissions” while performing his work (see Kel–Mar Designs, Inc. v. Harleysville Ins. Co. of N.Y., 127 A.D.3d 662, 663, 8 N.Y.S.3d 304 [1st Dept.2015] ). Given the breadth of the duty to defend, the fact that the injured claimant fell in a stairway, and not in the elevator itself, during the course of his elevator repair work, does not change this result.
Ironshore's remaining arguments are unavailing. The cases cited in Burlington (W & W Glass Sys., Inc. v. Admiral Ins. Co., 91 A.D.3d 530, 937 N.Y.S.2d 28 [1st Dept.2012] ; National Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 A.D.3d 473, 962 N.Y.S.2d 9 [1st Dept.2013] ; and Strauss Painting, Inc. v. Mt. Hawley Ins. Co., 105 A.D.3d 512, 963 N.Y.S.2d 197 [1st Dept.2013], mod on other grounds 24 N.Y.3d 578, 2 N.Y.S.3d 390, 26 N.E.3d 218 [2014] ), harmonized together, support the conclusion that a finding of negligence against Transel is not required to trigger additional insured coverage for the hotel, in view of the policy language of “acts or omissions.” Crespo v. City of New York, 303 A.D.2d 166, 756 N.Y.S.2d 183 (1st Dept.2003) is distinguishable, since the additional insured endorsement in that case provided coverage “ ‘only to the extent [the additional insured] is held liable for [the named insured's] acts or omissions,’ ” which language “suggest[s] that the wrongful conduct of the named insured must provide the basis for the imposition of liability on the additional insured” (Burlington, 132 A.D.3d at 137, 14 N.Y.S.3d 377 ).