ENGASSER CONSTRUCTION CORPORATION v. DRYDEN MUTUAL INSURANCE COMPANY ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1292
CA 15-00184
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.
ENGASSER CONSTRUCTION CORPORATION,
PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
DRYDEN MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.
BARCLAY DAMON, LLP, ROCHESTER (ANTHONY J. PIAZZA OF COUNSEL), FOR
DEFENDANT-APPELLANT.
BROWN & KELLY, LLP, BUFFALO (ANDREW D. MERRICK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (John A. Michalek, J.), entered September 22, 2014. The
judgment granted the motion of plaintiff for summary judgment, denied
the cross motion of defendant for summary judgment and declared that
defendant owes a defense and indemnification to plaintiff in the
underlying action.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff hired a contractor to install ice blocks
on the roof of its commercial building, and an employee of the
contractor fell from the roof while installing the ice blocks. The
employee and his spouse commenced an action against plaintiff,
alleging common-law negligence and violations of Labor Law §§ 200, 240
(1) and 241 (6). At the time of the accident, the contractor was
insured under a general liability policy issued by defendant, and an
endorsement to that policy named plaintiff as an additional insured.
The additional insured endorsement states that the insured provision
of the general liability coverage “is amended to include as an insured
the [plaintiff] BUT only with respect to . . . its liability for
activities of the named insured or activities performed by [the
plaintiff] on behalf of the named insured.” Pursuant to that
endorsement, plaintiff sought a defense and indemnification in the
underlying action, and defendant disclaimed coverage. Plaintiff
thereafter commenced the instant action seeking a declaration that
defendant had an obligation to defend and indemnify it in the
underlying action, and in its answer, defendant sought, inter alia, a
declaration that it had no such obligation.
-2- 1292
CA 15-00184
Supreme Court properly granted plaintiff’s motion for summary
judgment, denied defendant’s cross motion for summary judgment, and
granted judgment declaring, inter alia, that defendant owes a defense
and indemnification to plaintiff in the underlying action. “Insurance
contracts must be interpreted according to common speech and
consistent with the reasonable expectations of the average insured”
(Cragg v Allstate Indem. Corp., 17 NY3d 118, 122). Plaintiff
reasonably expected coverage under the endorsement, inasmuch as it was
subject to liability for the activities of the named insured, i.e.,
the injured worker’s employer, under the Labor Law (see McCarthy v
Turner Constr., Inc., 17 NY3d 369, 374-375; Chapel v Mitchell, 84 NY2d
345, 347-348). Thus, pursuant to the additional insured endorsement,
plaintiff was entitled to coverage “with respect to . . . its
liability for activities of the named insured,” and the court properly
declared that plaintiff is entitled to a defense and indemnification
under the policy (see Burlington Ins. Co. v NYC Tr. Auth., 132 AD3d
127, 138).
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court