| Erie Ins. Group v National Grange Mut. Ins. Co. |
| 2009 NY Slip Op 05059 [63 AD3d 1412] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Erie Insurance Group et al., Appellants, v National Grange MutualInsurance Company, Respondent, et al., Defendants. |
—[*1] Pennock, Breedlove & Noll, L.L.P., Clifton Park (Carrie McLoughlin Noll of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Kramer, J.), entered July 25, 2008 inSchenectady County, which, among other things, granted a motion by defendant NationalGrange Mutual Insurance Company to dismiss plaintiffs' first cause of action.
Defendant Martin McClary subcontracted with the general contractor, plaintiff Pine RidgeLog Homes, Inc., to do foundation work for the construction of a home. McClary was insured bydefendant National Grange Mutual Insurance Company (hereinafter NGM). McClary'semployee, defendant Michael P. Giblin, commenced an underlying personal injury action afterhe lost an eye while working on the project (see Giblin v Pine Ridge Log Homes, Inc., 42 AD3d 705 [2007]).Pine Ridge and its insurer, plaintiff Erie Insurance Group, commenced this action seeking adeclaration that NGM was required to defend and indemnify Pine Ridge in the underlying action.Specifically, plaintiffs allege that McClary entered into an oral contract with Pine Ridge to namePine Ridge as an additional insured under his policy issued by NGM.
Prior to answering, NGM moved to dismiss the complaint based upon documentary [*2]evidence (see CPLR 3211 [a] [1]), arguing that Pine Ridgewas not insured under McClary's policy. Plaintiffs cross-moved for summary judgment againstNGM. Supreme Court granted NGM's motion to dismiss the complaint against NGM, denied thecross motion and declared that Pine Ridge is not an additional insured under NGM's insurancepolicy issued to McClary.[FN1]On plaintiffs' appeal, we affirm.
While "[u]nder CPLR 3211 (a) (1), a dismissal is warranted only if the documentaryevidence submitted conclusively establishes a defense to the asserted claims as a matter of law"(Leon v Martinez, 84 NY2d 83, 88 [1994]; see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; Weston v Cornell Univ., 56 AD3d 1074, 1075 [2008]), plaintiffscross-moved for summary judgment, permitting the court to grant judgment to any party(see CPLR 3212 [e]).[FN2]NGM was entitled to dismissal of the complaint against it based upon undisputed facts and thelanguage of the insurance policy.
A portion of the insurance policy issued by NGM to McClary stated, "Each of the followingis added as an Additional Insured . . . [a]ny general contractor, subcontractor orowner for whom you are required to add as an additional insured on this policy under a writtenconstruction contract or agreement where a certificate of insurance showing that person ororganization as an additional insured has been issued and received by [NGM] prior to the time ofloss." This provision is ambiguous (compare Superior Ice Rink, Inc. v Nescon Contr. Corp., 52 AD3d688, 691 [2008]; Travelers Indem.Co. of Am. v Royal Ins. Co. of Am., 22 AD3d 252, 253 [2005]). One possible readingof the provision is that the construction contract or agreement to list someone as an additionalinsured must be in writing, and a certificate of insurance listing that person or organization mustbe issued and received by NGM prior to the loss-inducing incident. The provision could also beread as containing two alternate ways of including a person or organization as an additionalinsured: if a written construction contract so requires, regardless of whether NGM is evernotified; or if any agreement—oral or written—so requires and a certificate ofinsurance listing that person or organization is received by NGM prior to the loss-inducingincident. Despite this ambiguity, and the rule that any ambiguity in an insurance contract isresolved against the insurer (see Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d334, 340 [2000]), NGM must prevail here.
Regardless of which interpretation is used, the policy's contractual requirements have notbeen satisfied so as to include Pine Ridge as an additional insured. The record does not contain awritten contract or agreement between McClary and Pine Ridge. Nor did anyone introduce acertificate of insurance listing Pine Ridge as an additional insured, let alone proof that such acertificate was sent to or received by NGM. In fact, NGM's employee affirmed that [*3]no such certificate was ever received. Under the first reading of thepolicy provision above, plaintiffs cannot prevail because the agreement between Pine Ridge andMcClary was not in writing and no pertinent certificate of insurance was issued or received byNGM. Under the second reading, the first alternative is not met due to the lack of a writtencontract or agreement and the second alternative is not met due to the lack of the requiredcertificate of insurance. Although the documentary evidence alone was insufficient toconclusively establish a defense, the record evidence supports a grant of summary judgmentdismissing the complaint as against NGM and declaring that Pine Ridge is not an additionalinsured under the insurance policy at issue.
Cardona, P.J., Peters, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: The complaint also contained asecond cause of action alleging breach of contract against McClary and seeking to have himindemnify Pine Ridge if NGM does not do so. That cause of action was not dismissed bySupreme Court and is not at issue on appeal.
Footnote 2: While a motion for summaryjudgment is premature when filed before joinder of issue (see CPLR 3212 [a]; Roche v Claverack Coop. Ins. Co., 59AD3d 914, 916 [2009]), no party complained of this procedural defect.