| Christ the King Regional High School v Zurich Ins. Co. of N.Am. |
| 2012 NY Slip Op 00480 [91 AD3d 806] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Christ the King Regional High School et al.,Respondents, v Zurich Insurance Company of North America,Appellant. |
—[*1] Conway, Farrell, Curtin & Kelly P.C., New York, N.Y. (Jonathan Uejio of counsel), forrespondents.
In an action for a judgment declaring that the defendant is obligated to defend and indemnifythe plaintiffs in an underlying personal injury action entitled Levine v Christ the KingRegional High School, commenced in the Supreme Court, Kings County, under index No.26408/06, the defendant appeals from an order of the Supreme Court, Queens County(McDonald, J.), dated May 3, 2010, which denied its motion for summary judgment declaringthat it is not obligated to defend and indemnify the plaintiffs in the underlying action.
Ordered that the order is reversed, on the law, with costs, the defendant's motion forsummary judgment declaring that it is not obligated to defend and indemnify the plaintiffs in theunderlying action is granted, and the matter is remitted to the Supreme Court, Queens County, forthe entry of a judgment declaring that the defendant is not obligated to defend and indemnify theplaintiffs in the underlying action.
The plaintiffs entered into an agreement with All American Talent (hereinafter AllAmerican), whereby All American was to rent the auditorium and three classrooms in theplaintiff Christ the King Regional High School (hereinafter the school) for two days for a dancecompetition. The written contract between the plaintiffs and All American required All Americanto provide "a [c]ertificate of [i]nsurance freeing [the school] of all liability."
Shirley Levine allegedly was injured when she fell on a sidewalk while walking from theparking lot behind the school to the school's front entrance in order to attend the dancecompetition. Levine commenced an action against the present plaintiffs, alleging that her fall wascaused by a sidewalk defect. The plaintiffs sought defense and indemnification in that actionfrom the defendant, under an additional insured endorsement of a general liability policy issuedby the defendant to All American. When the defendant denied that request, the plaintiffscommenced this action for a judgment declaring that the defendant is obligated to defend andindemnify them in the underlying personal injury action. The defendant moved for summaryjudgment declaring that it is not so obligated, on the basis that the plaintiffs were not entitled toadditional insured coverage under [*2]the subject policy. TheSupreme Court denied the motion, concluding that certain language in a "Building and PersonalProperty Coverage Form" in the policy was sufficiently ambiguous to preclude the granting ofsummary judgment.
The Supreme Court erred in relying on the "Building and Personal Property Coverage Form"to deny the defendant's motion. The plaintiffs did not seek coverage under that endorsement,which provided coverage for property damage.
The defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that the plaintiffs did not qualify for additional insured coverage under Section II,2.f of the Commercial General Liability Coverage Form of the subject policy. That provisiondefines an "insured" to include any organization to whom All American was obligated, by virtueof a written contract for a lease of premises, "to provide insurance such as is afforded by thispolicy, but only with respect to liability arising out of the ownership, maintenance, or use of thatpart of any premises leased to you."
As an initial matter, contrary to the defendant's contention, the portion of theabove-referenced provision which requires that All American be obligated to provide insuranceby virtue of a written contract, in order for the plaintiffs to qualify for additional insuredcoverage, was satisfied here. In that regard, a provision in a written contract "cannot beinterpreted as requiring the procurement of additional insured coverage unless such a requirementis expressly and specifically stated. In addition, contract language that merely requires thepurchase of insurance will not be read as also requiring that a contracting party be named as anadditional insured" (Trapani v 10 Arial Way Assoc., 301 AD2d 644, 647 [2003]; see Empire Ins. Co. v Insurance Corp. ofN.Y., 40 AD3d 686, 688 [2007]). Therefore, this Court has held that additional insuredcoverage was not available where the named insured had entered into a contract requiring it toobtain liability insurance for itself (see140 Broadway Prop. v Schindler El. Co., 73 AD3d 717, 718 [2010]; Empire Ins. Co.v Insurance Corp. of N.Y., 40 AD3d at 688), or to provide a certificate of insurance showingthat it held liability insurance in its own name (see Trapani v 10 Arial Way Assoc., 301AD2d at 647). Furthermore, it has been held that additional insured coverage was not availablewhere the named insured had entered into a contract whereby it agreed to obtain liabilityinsurance in its own right and to hold the other party harmless (see Mangano v AmericanStock Exch., 234 AD2d 198, 199 [1996]; Public Adm'r of Bronx County v Equitable LifeAssur. Socy. of U.S., 198 AD2d 105 [1993]; Bishop v Port Auth. of N.Y. & N.J.,170 AD2d 565, 567 [1991]).
None of these circumstances is present here. Rather, here, the subject contract required AllAmerican to provide a "[c]ertificate of [i]nsurance freeing [the school] of all liability"(emphasis added), and did not contain any provision requiring All American to hold the schoolharmless for any liability. Thus, the relevant contractual provision, which, unlike the provision atissue in Trapani, refers directly to the school, cannot be interpreted as requiring only thatAll American obtain liability insurance for itself, as that would render the phrase "freeing [theschool] of all liability" meaningless. Nor, in the absence of a hold-harmless provision, can therelevant contractual provision reasonably be read to require that All American obtain liabilityinsurance for itself and free the school from liability by holding the school harmless. Instead, thecontract provision can only be reasonably read to require All American to include the school asan additional insured on its liability policy, such as would allow it to provide the plaintiffs with acertificate of insurance "freeing [the school] of all liability." Accordingly, the defendant failed todemonstrate the absence of the requisite written contract.
However, the above-quoted provision of the subject policy only provides additional insuredcoverage for "liability arising out of the . . . use of that part of any premises leased"to All American. The defendant met its prima facie burden of demonstrating that the plaintiffsfailed to satisfy this portion of the policy by showing that the contract defined the leasedpremises as the school auditorium and three classrooms, and that the accident that is the subjectof the underlying action occurred outside the school building.
In opposition, the plaintiffs attempted to raise a triable issue of fact by showing that [*3]coverage was nonetheless available under Section II, 2.e of theCommercial General Liability Coverage Form, under which, as relevant here, an "insured" isdefined to include any organization to whom All American was obligated, by virtue of a writtencontract, to provide liability insurance, "but only with respect to liability arising out of [its]operations." This provision requires that there be " 'some causal relationship between the injuryand the risk for which coverage is provided' " (Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA,15 NY3d 34, 38 [2010], quoting Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472[2005]; see Worth Constr. Co., Inc. vAdmiral Ins. Co., 10 NY3d 411, 415 [2008]). The plaintiffs failed to raise a triable issueof fact as to the existence of such a causal relationship. All American's "operations" consisted ofconducting a dance competition in the school auditorium and three classrooms. Bodily injuryoccurring outside the leased premises, in an area which All American had no responsibility tomaintain or repair, "was not a bargained-for risk" (Maroney v New York Cent. Mut. Fire Ins.Co., 5 NY3d at 473). Rather, All American's "operations" at the school merely furnished theoccasion for the accident, much like in Worth Constr. Co., where the fact that thenamed-insured subcontractor installed a staircase on which the injured plaintiff fell, thusfurnishing "the situs of the accident," did not demonstrate that the accident, caused by theinstallation of fireproofing on the staircase by another subcontractor, arose from thenamed-insured subcontractor's "operations" (Worth Constr. Co., Inc. v Admiral Ins. Co.,10 NY3d at 416; cf. Castillo v AmjackLeasing Corp., 84 AD3d 1298, 1298 [2011] ["liability may not be imposed upon a partywho merely furnishes the condition or occasion for the occurrence of the event but is not one ofits causes" (internal quotation marks omitted)]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment declaring that it is not obligated to defend and indemnify the plaintiffs in theunderlying action.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Queens County, for the entry of a judgment declaring that the defendant is not obligated todefend and indemnify the plaintiffs in the underlying personal injury action entitled Levine vChrist the King Regional High School, commenced in the Supreme Court, Kings County,under index No. 26408/06 (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appealdismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Skelos, J.P., Hall, Lottand Cohen, JJ., concur.