Opinion
May 23, 1994
Appeal from the Supreme Court, Orange County (Hillery, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and it is declared that Michigan Mutual Insurance Company and United States Fidelity and Guaranty Company provide concurrent insurance to B.K. General Contractors, Inc.
On appeal, Michigan Mutual Insurance Company (hereinafter Michigan Mutual) contends that the court erred to the extent that it held that it is the primary insurance carrier of B.K. General Contractors, Inc. (hereinafter B.K. General) and United States Fidelity and Guaranty Company (hereinafter USFG) is B.K. General's excess carrier in the underlying negligence action. We agree. Concurrent coverage exists where each insurer provides insurance to an insured for the same interest and against the same risk (see, Continental Ins. Co. v. Commercial Union Ins. Co., 27 A.D.2d 333). Here, the facts indicate that B.K. General (the general contractor) was named as an "additional insured" under the Michigan Mutual Commercial General Liability (hereinafter CGL) policy of the subcontractor, Point Iron Works, for work to be performed at the Nanuet Mall, in Nanuet, New York. The Michigan Mutual policy contained an endorsement which provided that B.K. General was insured only with respect to liability arising out of operations performed for B.K. General by or on behalf of Point Iron Works. B.K. General also obtained its own CGL policy from USFG. Both CGL policies provided coverage in the event that B.K. General was to become legally obligated to pay damages because of "personal injuries." In addition, both CGL policies purported to be primary insurance.
Under these facts, we find that Michigan Mutual and USFG are coinsurers since they provided coverage to the same insured for the same interest and against the same risk (see, Continental Ins. Co. v. Commercial Union Ins. Co., supra; cf., Argonaut Ins. Co. v. Continental Ins. Co., 63 A.D.2d 927). Further, the carriers' status as coinsurers is not affected by the fact that USFG's policy provided B.K. General with coverage against a liability (common-law negligence) beyond that provided by Michigan Mutual (see, Continental Ins. Co. v Commercial Union Ins. Co., supra, at 336; see also, Hawthorne v. South Bronx Community Corp., 78 N.Y.2d 433). Balletta, J.P., Miller, Lawrence and Goldstein, JJ., concur.