| W & W Glass Sys., Inc. v Admiral Ins. Co. |
| 2012 NY Slip Op 00307 [91 AD3d 530] |
| Jnury 19, 2012 |
| Appellate Division, First Department |
| W& W Glass Systems, Inc., Respondent, v AdmiralInsurance Company et al., Appellants. |
—[*1] James J. Toomey, New York (Eric P. Tosca of counsel), for respondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered September 14, 2010,which, to the extent appealed from, granted plaintiff's motion for summary judgment declaringthat defendant Admiral Insurance Company (Admiral) had a duty to defend plaintiff in theunderlying action, awarding past defense costs, and referring the calculation of defense costs to aspecial referee, unanimously affirmed, with costs.
In this declaratory judgment action, plaintiff general contractor seeks a declaration that it wasentitled to defense and indemnification from Admiral in connection with an underlying personalinjury action in which an employee of defendant Metal Sales Company, Inc., a subcontractorhired by plaintiff, was injured. Metal Sales had a commercial general policy with Admiralpursuant to which plaintiff was named as an additional insured. The policy provided that plaintiffwas covered "only with respect to liability caused by [the subcontractor's] ongoing operationsperformed for that insured [i.e., plaintiff]." The policy further provided that it "does not apply toliability caused by the sole negligence of the person or organization [named as an additioninsured]."
Contrary to defendants' argument that the "caused by" language in the policy is "narrower"than the "arising out of" language in BPA.C. Corp. v One Beacon Ins. Group (8 NY3d 708 [2007]), the case relied on by themotion court, the phrase "caused by your ongoing operations performed for that insured," doesnot materially differ from the general phrase, "arising out of" (see Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh,PA, 15 NY3d 34, 38 [2010]; see also QBE Ins. Corp. v ADJO Contr. Corp., 32Misc 3d 1231[A], 2011 NY Slip Op 51508[U] [2011]). The language in the additional insuredendorsement granting coverage does not require a negligence trigger (see Hunter Roberts Constr. Group, LLC vArch Ins. Co., 75 AD3d 404, 407-408 [2010]), and the record demonstrates that the lossinvolves an employee of Metal Sales, the named insured, who was injured while performing thenamed insured's work under the subcontract. It is immaterial that the complaint against theinsured asserts additional claims which fall outside the policy's general coverage or within itsexclusory provisions (BP A.C. Corp., 8 NY3d at 714). The duty to defend is "exceedinglybroad and an insurer will be called upon to provide a defense whenever the allegations of thecomplaint suggest . . . a reasonable possibility of coverage" (id. [internalquotation marks and citation omitted]).[*2]
Defendants' argument that further discovery is warrantedand that the motion is therefore premature, is unavailing. Defendants participated in lengthydiscovery in the underlying action. Admiral had all of the relevant policies of insurance and hadample opportunity to gather evidence.
No proof was offered demonstrating that wrap-up coverage may have been in effect, andAdmiral's bare affirmation raising speculative defenses is insufficient to defeat a prima facieshowing of entitlement to summary judgment (see Gilbert Frank Corp. v Federal Ins. Co.,70 NY2d 966 [1988]). Defendants cannot avoid summary judgment based on speculation thatfurther discovery may uncover something.
We have considered defendants' remaining arguments and find them unavailing.Concur—Andrias, J.P., Sweeny, Moskowitz, Renwick and Freedman, JJ. [Prior CaseHistory: 2010 NY Slip Op 32120(U).]