HNRK Coverage Corner

On May 11, 2018, Justice Lebovits of New York County Supreme Court issued a decision in Touro College v. Arch Specialty Ins. Co., Index No. 652642/2016, holding that a property owner was entitled to defense coverage for a personal injury action as an additional insured under a general contractor’s CGL policy.  The Court ruled that the issue of indemnity coverage, however, would have to await the determination of the contractor’s liability in the underlying injury action. This case involves a policy provision that was the subject of a recent Court of Appeals decision covered on this ...

On March 26, 2018, the New York Court of Appeals issued a decision by Judge Wilson in Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117, holding that an Additional Insured-By Written Contract endorsement in a general contractor’s liability policy did not provide coverage for a construction manager that had no written contract with the general contractor — even though the contractor was obligated under a contract with the property owner to name the construction manager as an additional insured.  Judge Stein wrote a dissenting opinion, joined ...

On April 27, 2018, Justice Marcy Friedman of the New York County Commercial Division issued a decision in National Union Fire Ins. Co. of Pittsburgh, PA v. Burling Ins. Co., 2018 NY Slip Op 30741(U), holding that a Total Pollution Exclusion did not excuse an excess liability carrier’s duty to defend personal injury lawsuits brought by clean-up workers at the World Trade Center site, who alleged that they suffered respiratory and other injuries from exposure to toxins dispersed in the area after September 11.

The exclusion at issue in National Union applied to any claim for ...

On March 9, 2018, the Second Department issued a decision in Graphic Arts Mut. Ins. Co. v. Pine Bush Central School Dist., Index No. 6304/2015, holding that a school district's entitlement to indemnity coverage under a CGL policy for the cost of settling a religious discrimination case depended on questions of fact. Graphic Arts arose from a lawsuit filed by a group of students from the Pine Bush School District, alleging that the students were subjected to anti-Semitic harassment and discrimination by other students, which was reported to, but ignored by school officials.  According ...

On February 26, 2018, United States Magistrate Judge H. Kenneth Schroeder of the WDNY issued a decision in American Precision Indus., Inc. v. Federal Ins. Co., Case No. 14-CV-1050-RJA-HKS, holding that an insured could obtain discovery of standard forms used by the insurer as “secondary evidence” of a lost insurance policy’s terms.

An insurance policy is a contract, and the determination whether the insured is entitled to coverage depends on the policy’s terms.  But what if the policy itself goes missing?  This is not as far-fetched as it may sound, particularly with regard to ...