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Brooklyn Hospital Center v. One Beacon Insurance12/14/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
This is an insurance declaratory judgment action arising out of a worker 's accident at a hospital construction site. Plaintiffs The Brooklyn Hospital Center (the "Hospital") and Barr & Barr ("Barr") move for summary judgment (CPLR 3212) declaring that defendants One Beacon Insurance ("Beacon") and American Motorist Insurance Company s/h/a Kemper Insurance Companies ("AMICO") must defend and indemnify plaintiffs as additional insureds in connection with a personal injury action entitled Donald McNeil et ano v. Brooklyn Hospital and Barr & Barr, Inc.,(Kings County Index No. 49321/99)(the "McNeil Action").
Facts/Background
In the underlying McNeil Action, Donald McNeil ("McNeil") alleges that on December 1, 1999, he was injured in a fall from a collapsing ladder while working at a construction site at the Hospital. His complaint, filed on December 20, 1999, asserts that the accident arose from the negligence of the Hospital (as owner) and Barr (as the Hospital's construction manager). The complaint alleges violations of Labor Law ยงยง 240(1), 241(6) and 200, as well as common law negligence.Both plaintiffs herein are insured by Travelers Property Casualty ("Travelers"), which undertook the initial defense of the McNeil action. The Travelers policy, however, provides that it is excess to any other insurance available to plaintiffs as additional insureds. In February 2000 Travelers learned from that two of Barr's subcontractors, Donaldson Acoustics Co., Inc. (McNeil's employer) and S.J. Electric, Inc. ("SJ"), might have been involved in the McNeil accident.
Pursuant to their respective subcontracts with Barr, Donaldson and SJ were required to obtain primary liability coverage naming Brooklyn and Barr as additional insureds. Donaldson procured Policy No. OJR716176 from Beacon (then CGU Insurance) for the period November 1, 1999 to January 3, 2000 (the "Beacon Policy"), and SJ procured Policy No. 3MG503454-00 from AMICO effective December 6, 1998 to December 6, 1999 (the "AMICO Policy"). The Beacon Policy included as an insured "any person or organization for whom [Donaldson is] performing operations when [Donaldson] and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured." The AMICO Policy extended coverage to " ny person or organization to whom or to which [SJ is] obligated by virtue of a written contract, agreement or permit to provide such insurance as afforded by this policy" as long as the liability arose out of SJ's work for the additional insured.
On March 10, 2000 Travelers sent a letter to Beacon demanding that it defend and indemnify plaintiffs pursuant to an alleged contract between Donaldson and Barr. Travelers did not receive a response to that letter, or to a follow-up copy of the letter sent in August 2000.
Travelers also sent a letter to SJ in March 22, 2000 asserting that McNeil had been injured while using SJ's ladder and purporting to tender the defense of the underlying action pursuant to the terms of SJ's contract with Barr. AMICO responded by letter dated April 7, 2000, requesting documentation relating the accident and insurance coverage so that it could conduct an investigation. On June 20, 2000, Travelers forwarded to AMICO litigation papers, portions of a subcontract between Barr and SJ dated January 3, 2000, and a certificate of insurance.
AMICO rejected Travelers' tender by letter of July 17, 2000, noting that the subcontract was not signed and was dated after the date of the accident. AMICO also noted that the certific
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