Gilbane Building Co./TDX Construction Corp., et al., Appellants,v.St. Paul Fire and Marine Insurance Company, et al., Defendants, Liberty Insurance Underwriters, Respondent.

Brief

N.Y.February 7, 2018

No Oral Argument Requested APL-2017-00001 New York County Clerk’s Index No. 653199/11 Court of Appeals STATE OF NEW YORK GILBANE BUILDING CO./TDX CONSTRUCTION CORP., A JOINT VENTURE; GILBANCE BUIDLING COMPANY; TDX CONSTRUCTION CORPORATION, Plaintiffs-Appellants, against ST. PAUL FIRE AND MARINE INSURANCE COMPNAY; FIDELITY AND GUARANTY INSURANCE COMPANY, UNITED STATES FIDELITY AND GUARANTY COMPANY; SELECT INSURANCE COMPANY, ZURICH AMERICAN INSURANCE COMPANY; ROYAL SURPLUS LINES INSURANCE COMPNAY; ARROWOOD SURPLUS LINES INSURANCE COMPANY; NEW HAMPSHIRE INSURANCE COMPANY; PACIFIC EMPLOYERS INSURANCE COMPANY, ILLINOIS UNION INSURANCE COMPANY; GREATE AMERICAN INSURANCE COMPANY; WESTCHESTER FIRE INSURANCE COMPANY; GEENWICH INSURANCE COMPNAY, UNITED NATIONAL CASUALTY INSURANCE OCMPANY; LIBERTY MUTUAL INSURANCE COMPANY WESTPORT INSURANCE CORPORATION; NATIONAL CASUALTY COMPANY; AMERICAN HOME ASSURANCE COMPANY; INSURANCE COMPANY OF THE STATE OF PA; NATIONAL UNION FIRE INURANCE COPANY OF PITTSBURGH, PA; HAYWARD BAKER INC.; SAMSON CONSTRUCTION INC.; PILE FOUNDATION CONSTRUCTION CO.; PERKINS EASTMAN ARCHITECTS P.C.; IRON & STEEL CO.; CRUM & FORSTER SPECIALTY COMPANY; ROADWAY CONTRACTING, INC.; SOIL SOLUTIONS, INC.; CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.; and SPX CORPORATION, Defendants, and LIBERTY INSURANCE UNDERWRITERS, Defendant-Respondents. BRIEF FOR AMICUS CURIAE TURNER CONSTRUCTION COMPANY IN SUPPORT OF PLAINTIFFS-APPELLANTS Date Completed: December 22, 2017 Louis J. Manger, Esq. TURNER CONSTRUCTION COMPANY 3 Paragon Drive, Montvale, NJ 07645 Tel.: (201) 722-3837 Fax: (201) 722-3835 ■*> <+ DISCLOSURE STATEMENT PURSUANT TO § 500.1(F) Pursuant to § 500.1(f) of the Rules of the Court of Appeals, Amicus Turner Construction Company advises the Court as follows: Turner Construction Company is a wholly-owned subsidiary of the Turner Corporation, which is a wholly-owned subsidiary of Hochtief USA, Inc., which is a wholly-owned subsidiary of Hochtief Americas, GMBH, which is a wholly-owned subsidiary of Hochtief AG, which is publicly traded on European stock exchanges; ACS Actividades de Construcion y Servicios, S.A. owns 10% or more of the shares of Hochtief AG. Lodis J. Manger, Esq. TURNER CONSTRUCTION COMPANY 3 Paragon Drive, Montvale, NJ 07645 Tel.: (201) 722-3837 Fax: (201) 722-3835 lmanger@tcco.com ii STATUS OF RELATED LITIGATION No related litigation currently exists. iii TABLE OF CONTENTS DISCLOSURE STATEMENT PURSUANT TO § 500.1(F) ................................... i STATUS OF RELATED LITIGATION .................................................................. ii TABLE OF CONTENTS ......................................................................................... iii TABLE OF AUTHORITIES ..................................................................................... v QUESTIONS PRESENTED FOR REVIEW ............................................................ 1 SUMMARY OF ARGUMENT ................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 4 ARGUMENT ............................................................................................................. 5 I. Gilbane/TDX is Entitled to Additional Insured Coverage Under the Liberty Policy ............................................................................................ 5 a. The Appellate Division’s interpretation of the Liberty Endorsement failed to adequately consider the intent of the “blanket additional insured endorsement” and the common customs and practices of the construction industry. ...................................................................... 5 b. The premium charged for Liberty Endorsement properly reflects underwriting considerations for the scope of risk undertaken by LIUI for all parties that promised additional insured coverage by its policyholder. ................................................................................... 11 c. At the time the Liberty Endorsement was issued, an average insured would reasonably expect this endorsement to extend additional insured coverage to all parties contemplated in a construction agreement. .................... 14 II. Gilbane /TDX Qualifies as an Additional Insured on the Liberty Policy ............................................................................................................. 15 iv a. Gilbane/TDX had a written contract with Samson, the named insured. ............................................................................... 15 CONCLUSION ........................................................................................................ 19 v TABLE OF AUTHORITIES Cases AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc., 102 A.D.3d 425 (1st Dep’t 2013) ........................................................................ 15 Camrex Contractors v. Reliance Marine Applicators, 579 F. Supp. 1420 (ED NY 1984) ........................................................................ 16 Chevron U.S.A., Inc. v. Bragg Crane & Rigging Co., 225 Cal. Rptr. 742 (1986) ..................................................................................... 12 Dean v. Tower Ins. Co. of New York, 19 NY3d 704 (2012) .................................. 14 First Mercury Insurance Company v. Shawmut Woodworking & Supply, Inc., 660 Fed Appx 30 (2d Cir 2016) ........................................................................... 18 Linarello v. City Univ. of N.Y., 6 A.D.3d 192 (1st Dep’t 2004) ............................ 15 Zurich Am. Ins. Co. v. Endurance Am. Specialty Ins. Co., 145 AD3d 502 (1st Dept 2016) ............................................................................ 16 Other Authorities 68A N.Y. Jur. 2d Insurance § 865 ........................................................................... 14 Construction Insurance: A Guide For Attorneys and Other Professionals 3, Stephen Palley, Timothy Delahunt, John Sandberg and Patrick Wielinski eds., ABA Publishing (2011) .......................................................................................... 8 Donald S. Malecki et al., The Additional Insured Book, International Risk Management Institute, (7th ed. 2013) .................................................................... 9 Douglas R. Richmond, The Additional Problems of Additional Insureds, 33 Tort & Ins. L.J. 945 (1998) ....................................................................... 11, 12 Mark Pomerantz, Recognizing the Unique Status of Additional Named Insureds, 53 Fordham L. Rev. 117 (1984) ............................................................................. 6 vi Scott Turner, Insurance Coverage of Construction Disputes, In general § 42:1 (2nd ed.), Clark Boardman Callaghan (2016) .......................... 11 1 QUESTIONS PRESENTED FOR REVIEW Amicus, Turner Construction Company, relies on the question presented by Gilbane Building Company/TDX Construction Corp. a Joint Venture, which states as follows: 1. Whether an insurance policy endorsement that includes as an insured “any person or organization with whom you have agreed to add as an additional insured by written contract,” requires a direct written contract between the Named Insured and party seeking coverage as an additional insured? 2 SUMMARY OF ARGUMENT This brief is submitted on behalf of amicus curiae, Turner Construction Company (“Turner”), to address an issue with significant insurance coverage ramifications for the construction industry. This Court has been asked to consider whether a general liability insurance policy endorsement that provides additional insured coverage to “any person or organization with whom you [the named insured policyholder] have agreed to add as an additional insured by written contract,” extends additional insured coverage to an organization that has been promised such coverage in a contract to which it is not a party. This brief presents authority and support for the conclusion that a direct written contract is not required between a named insured and an organization that is promised additional insured coverage, in order to extend such coverage to a party contemplated in a construction contract. General liability insurance policy endorsements extending coverage to “any person or organization with whom you have agreed to add as an additional insured” are commonly referred to in the construction industry as “blanket additional insured endorsements.” These endorsements are intended to streamline the unnecessary, and frequently time-consuming, process of amending policy language in order to add parties as additional insureds to an insurance policy, a requirement that is customary in the construction industry. “Blanket additional insured endorsements” enable a subcontractor to meet its contractual obligation to provide additional insured 3 coverage to, potentially, several upstream parties (including any general contractor, construction manager and owner of the project), simply by requiring that the subcontractor to agree to provide such coverage. These endorsements have been developed as an efficient means of procuring additional insured coverage to parties that are promised such coverage in a construction contract. In addition to the efficiencies afforded by such endorsements, the premium charged for “blanket additional insured endorsements,” properly reflect underwriting considerations evaluating the scope of risk undertaken by the insurance carrier for all parties that are promised additional insured coverage by its policyholder. Ultimately, the decision of the Appellate Division, First Department, must be reversed in order to properly give effect to the language and intent of the “Blanket Additional Insured Endorsement,” consistent with the expectations of all of the contracting parties in this case, as well as the construction industry at large. Gilbane Building Company/TDX Construction Corp. a Joint Venture (“Gilbane/TDX”) qualifies as an additional insured under the language of the “blanket additional insured endorsement,” issued by Liberty Insurance Underwriters, Inc. (“LIUI”) to Samson Construction Co. (“Samson”) because Samson promised in a written contract that it would provide additional insured coverage to Gilbane/TDX. In light of the foregoing, amicus respectfully requests that this Court reverse the judgment of the First Department, Appellate Division. 4 STATEMENT OF FACTS This appeal involves a dispute over whether Gilbane/TDX is entitled to liability insurance coverage for a third-party action claiming that Gilbane/TDX is responsible for property damage on a construction project. (R. 922, 934-938). The Dormitory Authority of the State of New York (“DASNY”), acting as the project owner, contracted with Gilbane/TDX to act as the Construction Manager. DASNY also contracted with Samson Construction Co. (“Samson”) to serve as Prime Contractor on the Project. Pursuant to the DASNY – Samson contract, Samson was required to procure commercial general liability insurance with an endorsement naming DASNY and Gilbane/TDX as additional insureds. As a result of its contractual obligations, Samson purchased a commercial general liability insurance policy from Liberty Insurance Underwriters, Inc. (“LIUI”) for the period of November 12, 2002 through November 12, 2003 (the “Liberty Policy”). (R. 715- 820, 217-278). The Liberty Policy included a blanket additional insured endorsement entitled “Additional Insured – By Written Contract” which stated: “Who is an insured (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you” (the “Liberty Endorsement”). (R. 274). The Liberty Endorsement was included in the Liberty Policy in order to afford the named insured 5 policyholder the flexibility to control those persons or organizations that are entitled to additional insured coverage, without specifically identifying those persons or organization in the policy. At the time that the Liberty Policy was issued, the Liberty Endorsement was relied on by all parties as a sufficient method of securing additional insured coverage for the entities promised such coverage in the DASNY – Samson contract. Although the Supreme Court found that the Liberty Endorsement did, in fact, achieve this objective, the Appellate Division disagreed, failing to consider the intent of the language in the context of the construction industry. The Appellate Division incorrectly found that the Liberty Endorsement only extends coverage to those persons or organizations that hold a direct contract with the named insured policyholder. For these reasons, the Appellate Division should be reversed, and the Supreme Court’s Order declaring Gilbane/TDX an additional insured on the Liberty Policy be reinstated. ARGUMENT I. Gilbane/TDX is Entitled to Additional Insured Coverage Under the Liberty Policy a. The Appellate Division’s interpretation of the Liberty Endorsement failed to adequately consider the intent of the “blanket additional insured endorsement” and the common customs and practices of the construction industry. A “blanket additional insured endorsement” extends additional insured coverage to persons and organizations that are not specifically identified in a policy 6 but are promised such coverage by the named insured policyholder. See 3 Couch on Insurance § 40:30 (3d ed.2014) (“A blanket additional insured endorsement generally provides coverage for any person or organization to whom or to which the named insured is obligated to name as an additional insured by virtue of a written contract or agreement”). These endorsements are intended to streamline the complexities of risk transfer in the construction industry and prevent common administrative oversights, such as, failing to properly identify an additional insured, or identifying the incorrect additional insured. The Appellate Division’s interpretation of the Liberty Endorsement, a blanket additional insured endorsement, fails to consider the intended purpose of the language of the endorsement in the context of the common customs and practices of the construction industry.1 A blanket additional insured endorsement that merely extends additional insured coverage to the party with whom the named insured has a direct contractual relationship, is stripped of its ability to effectuate its intended goal of streamlining the risk transfer process. As interpreted by the Appellate Division, the Liberty Endorsement affords no benefit to a named insured that is required to scrutinize each and every construction agreement, in order to identify all parties that are promised 1 Mark Pomerantz, Recognizing the Unique Status of Additional Named Insureds, 53 Fordham L. Rev. 117, 129-30 (1984) (“The intent of the insureds is reflected by the language of, and the circumstances surrounding, the agreement to procure … [C]overage is directly dependent on the bargain that the additional named insured made with the named insured.... [T]he overall circumstances surrounding, and purpose behind, the entire arrangement are also relevant to determining the intents of the parties.”). 7 additional insured coverage, and then, take steps to amend the language of their policy, or enter into countless side-agreements with each party to be included as an additional insured The Appellate Division failed to consider that blanket additional insured endorsements, like the Liberty Endorsement, are an insurance market solution intended to simplify the complexities of risk transfer in the construction industry. LIUI’s argument that an insured could not reasonably expect, given the language of the Liberty Endorsement, that additional insured coverage would extend beyond the party with which it held a direct contract, similarly ignores the fundamental customs and practices of risk transfer in the construction industry. In order to fully grasp the intent to the Liberty Endorsement, the language of the endorsement must be examined in the context of the industry. Every construction project, regardless of its size and scope, involves significant risk for each individual project participant. These projects frequently involve numerous parties, and it can be difficult and cumbersome for each participant to adequately manage their exposure to all risks, particularly those risks that fall outside of their immediate control. As a result, the construction industry has established a common risk transfer method under which the party that is closest to the work being performed, and therefore, in the best position to control the work, bears the risk of any bodily injury or property damage arising from that work. See 8 Construction Insurance: A Guide For Attorneys and Other Professionals 3, Stephen Palley, Timothy Delahunt, John Sandberg and Patrick Wielinski eds., ABA Publishing 2011(“[g]enerally, the goal is to allocate the risk fairly within the contract to each party so that the responsible party retains the risks it can control and, if possible, insures the risk at a reasonable cost.”). Ultimately, the risk falls on the party that is in the best position to control and mitigate any potential hazards. A critically important component of risk transfer in the construction industry is additional insured coverage afforded to organizations that are upstream2 and do not have immediate control over the work being performed on the project. Downstream subcontractors, at every tier, are typically required to provide this coverage for all upstream parties. See Id. (“… [I]t is common for owners to require contractors at every tier to name the owner as an additional insured under their CGL policies. General contractors, in turn, usually require their subcontractors to name the general contractor and owner as an additional insured. Thus, an owner or general contractor faced with a property damage or bodily injury claim often may have CGL insurance coverage …”). In light of these requirements, blanket additional insured endorsements providing automatic status when required in a construction agreement, have been introduced as a market solution to allow contractors and subcontractors to add persons or organizations as additional insureds without being required to 2 Typically, general contractors, construction managers or property owners. 9 specifically amend the language of their insurance policy. See Donald S. Malecki et al., The Additional Insured Book, International Risk Management Institute at 241 [7th ed. 2013] (“‘…the Additional Insured – Owners, Lessees or Contractors – Automatic Status When Required in Construction Agreement with You (CG 20 33) endorsement was introduced by ISO to allow contractors and subcontractors to add persons or organizations as additional insureds without being required to name such persons or organizations in the endorsement.”) (emphasis added).3 Blanket additional insured endorsements are intended to satisfy industry specific contractual requirements. Id. at 239 (“[m]any commercial general liability (CGL) insureds encounter frequent contractual demands to add other entities as insureds under their policies … [f]or this reason, CGL policies are sometimes endorsed to provide – on an automatic basis – additional insured status by virtue of a contract or agreement with the insured.”) (emphasis added). As downstream parties are customarily required to provide additional insured coverage to any and all upstream parties, not merely the party for whom it is directly performing work, it is clear that the purpose and intent of blanket additional insured endorsements, like the Liberty Endorsement, is to afford coverage to all upstream parties contemplated in a construction agreement. The Appellate Division’s interpretation of the Liberty Endorsement 3 The International Risk Management Institute (“IRMI”) publishes a multi-volume insurance reporter series entitled Commercial Liability Insurance. 10 indicates a fundamental misunderstanding of the intent and purpose of blanket additional insured endorsements in the construction industry. Moreover, the Appellate Division’s interpretation eliminates any benefit derived by a downstream policyholder that is contractually required to provide coverage to an organization that is not a direct party to the construction agreement.4 The Liberty Endorsement is a blanket additional insured endorsement intended to ensure that downstream subcontractors, such as Samson, efficiently maintain their contractual obligation to provide additional insured coverage to all upstream parties, such as Gilbane/TDX, without the inconvenience and inefficiency of specifically amending the language of their insurance policy with each construction agreement entered into. It is undisputed that Samson agreed, as part of the DASNY – Samson contract, to provide additional insured coverage for DASNY and Gilbane/TDX, as the “Construction Manager.” Samson did not ignore this contractual requirement, but rather, relied on the language of the Liberty Endorsement, given its plain meaning and clear intent. Samson’s reliance and understanding of the intended purpose of the endorsement is evidenced by the Certificate of Insurance provided to DASNY and Gilbane/TDX, which provides: 4 As an alternative, the downstream party would be required to either 1) take steps to amend the language of its insurance policy, in order to specifically identify the other parties contemplated in the construction agreement; or, 2) execute a separate and direct contract with those entities. Both solutions tragically upset the fundamental purpose of the blanket additional insured endorsement, which is to streamline the approach to additional insured coverage. 11 The following are Additional Insureds under General Liability as respects this Project: City of New York City of New York Health & Hospital Corporation Forensic Biology Laboratory Dormitory Authority-State of New York Gilbane/ TDX Construction Joint Venture (emphasis added) (R. 911-913). For the foregoing reasons, this Court should reverse the Appellate Division’s holding because its narrow interpretation of the Liberty Endorsement ignores the intended purpose of the endorsement. b. The premium charged for Liberty Endorsement properly reflects underwriting considerations for the scope of risk undertaken by LIUI for all parties that promised additional insured coverage by its policyholder. It is well established that “[f]or an additional premium to the named insured, a third party such as a general contractor or project owner can be named by endorsement as an additional insured on the CGL policy of a named insured such as a subcontractor.” Scott Turner, Insurance Coverage of Construction Disputes, In general § 42:1 (2nd ed.), Clark Boardman Callaghan 2016. It is the additional insured that receives the benefit of coverage under the named insured’s policy, while it is the named insured that actually pays the additional premium. Douglas R. Richmond, The Additional Problems of Additional Insureds, 33 Tort & Ins. L.J. 945, 948 (1998). The costs associated with additional insured coverage for upstream parties are well understood within the construction industry and it is standard practice for such costs to be factored into a downstream parties’ bid or contract price and, thus, 12 passed-along to the upstream party. See Id. at 948 fn. 20 (“The named insured may factor its insurance costs into the contract or lease at issue, thereby passing on the cost of coverage”); See also Chevron U.S.A., Inc. v. Bragg Crane & Rigging Co., 225 Cal. Rptr. 742 [1986] (acknowledging that the contractual relationship between developer and subcontractor that requires additional insured coverage presupposes that the subcontract payments go in part to fund the subcontractor's overhead including the purchase of liability insurance on the developer's behalf). Blanket additional insured endorsements permit the named insured, and not the insurer, to control the parties that are afforded additional insured coverage under their policy. As a result, the additional premium paid by the named insured, for a blanket additional insured endorsement, logically reflects underwriting considerations based on the annual course and scope of the named insured’s own work and not the number of the actual parties added as additional insureds. At the time the Liberty Endorsement was issued to Samson, LIUI was well-aware of the common customs and practices of risk transfer in New York, whereby subcontractors are required to provide additional insured coverage to all upstream parties. In this context, LIUI issued the blanket additional insured endorsement to Samson, permitting its named insured to control the parties that could be added as additional insureds on the Liberty Policy. Samson regularly performed work in New York for construction organizations that often required additional insured coverage 13 for all upstream parties (regardless of whether those parties had a direct agreement with Samson). The premium paid by Samson contemplates the risks associated with providing additional insured coverage for these upstream parties despite the unsupported assertions now being made by LIUI. This fact is supported by the simple notion that Samson, if it thought necessary, could have directly promised Gilbane/TDX additional insured coverage, for no additional premium, without any further underwriting analysis undertaken by LIUI. However, based on the reasonable expectations of Samson and Gilbane/TDX, at the time of contracting there would have been no practicality or purpose for such instrument beyond further memorializing their already existing contract. Ultimately, the premium Charged for the Liberty Endorsement properly reflects underwriting considerations for the scope of risk undertaken by LIUI for all parties that were promised additional insured coverage by its policyholder. LIUI baselessly asserts 1) that the Liberty Endorsement is specifically underwritten to afford coverage only to those parties with whom the named insured contracts; and, 2) that if Samson wanted to add other additional insureds it should have submitted a request through its broker, allowing LIUI to adequately assess the risk. LIUI offers no support for no support for either position. Moreover, this position defies logic as Samson could have executed a simple agreement to add Gilbane/TDX as an 14 additional insured for no additional premium and no further underwriting assessment from LIUI. c. At the time the Liberty Endorsement was issued, an average insured would reasonably expect this endorsement to extend additional insured coverage to all parties contemplated in a construction agreement. Given the legal landscape at the time the Liberty Endorsement was issued, an average insured would have reasonably expected, as Samson did, that all parties promised additional insured coverage in a construction agreement would be entitled to such coverage. It is well settled in New York that insurance contracts must be interpreted according to common speech and consistent with the reasonable expectations of the average insured. Dean v. Tower Ins. Co. of New York, 19 NY3d 704 [2012] See also 68A N.Y. Jur. 2d Insurance § 865 (“[i]nsurance contracts must be interpreted according to the reasonable expectation and purpose of the ordinary businessperson when making an ordinary business contract.”). The Liberty Policy was issued on November 12, 2002, to Samson, a New York corporation, which regularly performed work in New York for construction organizations requiring additional insured coverage for any and all upstream parties. (R 218). At the time the Liberty Policy was issued, the New York Court of Appeals and the Appellate Division had not had an occasion to interpret the scope of the language of the Liberty Endorsement or any other similarly worded blanket additional insured endorsements. In fact, the Liberty Policy was issued to Samson 15 prior to the Appellate Division’s decisions in Linarello v. City Univ. of N.Y., 6 A.D.3d 192 [1st Dep’t 2004] and AB Green Gansevoort, LLC v. Peter Scalamandre & Sons, Inc., 102 A.D.3d 425, 426 [1st Dep’t 2013]. Given the broad language of the Liberty Endorsement, the common customs and practices in the construction industry, and lack of any binding authority from New York courts on the issue, an average insured in the construction industry could have reasonably expected the Liberty Endorsement to extend additional insured coverage to all upstream parties promised such coverage. Consequently, Samson reasonably expected that the Liberty Endorsement would provide additional insured coverage to all additional insureds required by its agreement with DASNY, including Gilbane/TDX. Samson’s expectation that the Liberty Endorsement would provide such coverage is evidenced by the Certificate of Insurance that was issued to Gilbane/TDX as well as the simple notion that, in order to protect its own interests, it would seek to avoid breaching its contract with DASNY by failing to secure the proper coverage. II. Gilbane /TDX Qualifies as an Additional Insured on the Liberty Policy a. Gilbane/TDX had a written contract with Samson, the named insured. Under the language of the Liberty Endorsement, Samson did have a written contract with Gilbane/TDX. While the lower court found that Samson did not have a first-party or direct written contract with Gilbane/TDX, the Liberty Policy 1) does 16 not define “written contract;” and, 2) does not require a separate first-party or direct contractual relationship with additional insureds to afford them coverage. As a preliminary matter, the Liberty Policy does not specify the form a “written contract” must take. The Liberty Policy states that the insurer is to “include as an insured any person or organization with whom you [the policyholder] have agreed to add as an additional insured by written contract.” Under settled principles of contract law in New York, a written contract can take the form of any writing. See, e.g., Camrex Contractors v. Reliance Marine Applicators, 579 F. Supp. 1420, 1430 [ED NY 1984] (exchange of telexes between the parties constitute a written contract); accord Zurich Am. Ins. Co. v. Endurance Am. Specialty Ins. Co., 145 AD3d 502, 504 [1st Dept 2016] (“the court did not err by finding that the unsigned purchase order constituted a written contract for purposes of the additional insured endorsement”). Here, the contractual relationship between Samson and Gilbane/TDX took the form of several writings or written contracts. First, DASNY’s construction management agreement guaranteed that any prime contractor retained by DASNY or otherwise would name the Construction Manager (i.e. Gilbane/TDX), as an additional insured under its liability policy. (R. 670-671). To that effect, Samson’s contract with DASNY required Samson to name on its endorsement the “Construction Manager” as an additional insured. (R. 877-878). Samson also 17 produced a copy its certificate of insurance to Gilbane/TDX, which identified that Gilbane/TDX was an additional insured. (R. 914-917). This followed from the language of the contract between Gilbane/TDX and DASNY, which provides: “It shall be the responsibility of the CONSTRUCTION MANAGER to obtain a copy of each Prime Contractors Certificate of Insurance, in order to ensure that the CONSTRUCTION MANAGER is included as an additional insured thereunder.” (R. 673). According to the contract, the parties contemplated the certificate as the primary means or mechanism through which Gilbane/TDX would obtain written proof of its additional insured status.5 Upon providing the Certificate of Insurance to Gilbane/TDX, the subcontractor’s document named as its subject “Insurance Requirements,” stating as its purpose the contractor’s fulfillment of its insurance requirements. Although, the Appellate Division found that Samson did not enter into a written contract with the with Glibane/TDX, this conclusion ignores and abrades the fact that the certificate of insurance epitomizes the relationship between the subcontractor and the Construction Manager. Under similar circumstances, the Second Circuit Court of Appeals found that a comparable additional insured requirement was met because direct contractual 5 Even though, the Certificate of Insurance seeks to limit its legal effect by providing: “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 below.” 18 privity was not required between all parties. See First Mercury Insurance Company v. Shawmut Woodworking & Supply, Inc., 660 Fed Appx 30 [2d Cir 2016]. The Second Circuit’s holding in Shawmut is instructive in contextualizing for whom and with whom the contract is forged. The court held, under similar circumstances to the present case, that it should not insert privity requirements into the policy for additional insureds ex post facto, where a written contract or agreement was required to add an insured. Id. at 34. In Shawmut, a written contract existed when the sub- subcontractor agreed in writing with the subcontractor to include the Construction Manager as an additional insured. The contract between the subcontractor and the sub-subcontractor was held to insure the Construction Manager because the contract between the subcontractor and the sub-subcontractor “incorporated” the agreement between the Owner and the subcontractor and the Subcontract Documents required the sub-contractor and each sub-subcontractor, as in the instant case, to name the Construction Manager as additional insured. The Shawmut court placed the burden on the insurer in each case to add specific language in the Policy requiring “the need for a single, direct agreement,” where desired. Otherwise the Shawmut court would place no time-or place-dimension restriction on the existence of the written contract and would incorporate “other instrument[s] [as] part of their understanding . . . [and] interpret [them] together as the agreement of the parties.” Id. (quoting Allstate Life Ins. Co. v. BFA Ltd. P’ship, 287 Conn. 307, 948 A2d 318 [2008]). As in Shawmut, the written contract between DASNY and Samson required the incorporation of the Construction Manager, Gilbane/TDX, as an additional insured. (R. 878). Moreover, this writing was further etched in the written provision of the certificate of insurance, on which both Samson and Gilbane/TDX relied. Accordingly, under the language of the Liberty Endorsement, Samson did have a written contract with Gilbane/TDX. CONCLUSION For the foregoing reasons, Amicus Turner Construction Company respectfully requests that this court enter an order revising the Appellate Division’s decision dated September 15, 2016. Dated: December 22, 2017 J. Manger, Esq. TURNER CONSTRUCTION COMPANY 3 Paragon Drive, Montvale, NJ 07645 Tel.: (201) 722-3837 Fax: (201) 722-3835 lmanger@tcco.com 19 CERTIFICATE OF COMPLAINCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief for amici curiae was prepared on a computer using Microsoft Word 2016. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 14 Line spacing: Double The total number of words in the brief for amici curiae, inclusive of point headings and footnotes and exclusive of the table of contents, and the table of cases and authorities; and any addendum containing material required by § 500.1 (h) is 4,178. LoirisJ. Manger, Esq. TURNER CONSTRUCTION COMPANY 3 Paragon Drive, Montvale, NJ 07645 Tel.: (201)722-3837 Fax: (201)722-3835 lmanger@tcco.com 20