| AB Green Gansevoort, LLC v Peter Scalamandre & Sons,Inc. |
| 2013 NY Slip Op 00031 [102 AD3d 425] |
| January 8, 2013 |
| Appellate Division, First Department |
| AB Green Gansevoort, LLC, Respondent, v PeterScalamandre & Sons, Inc., et al., Defendants, and Liberty Mutual Insurance Company,Appellant. |
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Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), forrespondent.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered December20, 2011, which, to the extent appealed from, denied defendant Liberty's motion forsummary judgment dismissing the amended complaint as against it, unanimouslymodified, on the law, to declare that Liberty has no obligation to defend or provideinsurance coverage for plaintiff AB Green Gansevoort, LLC (Green) in the underlyingpersonal injury action, and otherwise affirmed, without costs.
Plaintiff Green commenced this declaratory judgment action seeking liabilitycoverage from defendant Liberty Mutual Insurance Company as an additional insured.The underlying action was brought by Juan Vargas, who alleges that he suffered bodilyinjury while working on a construction site owned by Green. Pavarini McGovern, LLCserved as general contractor on the construction site. Pavarini then retained as asubcontractor Peter Scalamandre & Sons, Inc. Scalamandre then purchased concretefrom Ferrara Brothers Building Materials Corp. pursuant to an unsigned purchase order.
Ferrara obtained a commercial lines insurance policy from Liberty. The policy stated,in pertinent part, that an organization is added as an additional insured "when you andsuch . . . organization have agreed in writing in a contract or agreement thatsuch . . . organization be added as an additional insured on your policy."
Liberty moved for summary judgment dismissing Green's complaint seekingcoverage as an additional insured under the policy issued to Ferrara. Liberty asserted thatsince Green did not produce any written agreement between itself and Ferrara namingGreen as an additional insured, under the plain language of the policy, there was noquestion of fact as to whether an agreement existed between Ferrara and Green. Themotion court denied Liberty's motion for summary judgment and this appeal ensued.
Liberty persuasively argues that this Court's decision in Linarello v City Univ. of N.Y.(6 AD3d 192 [1st Dept 2004]) requires that there be an express written agreementbetween Ferrara and Green for Green to be an additional insured (id. at 195). Thelanguage of the insurance [*2]policy at issue inLinarello is exactly the same as the policy here. It specifically provides that theremust be a written agreement between the insured and the organization seeking coverageto add that organization as an additional insured. No such agreement exists here. Absentsuch an agreement, the plain terms of the policy have not been met and Green cannotseek coverage from Liberty as an additional insured. Although policies containingbroader language have been found to allow for an agreement naming an additionalinsured without an express contract between the parties, the language at issue here isrestricted to its plain meaning (cf. American Home Assur. Co. v Zurich Ins. Co.,26 Misc 3d 1223[A], 2010 NY Slip Op 50237[U] [Sup Ct, Kings County 2010]).
In opposition, Green argues that the title of the provision, "AdditionalInsured—Owners, Lessees or Contractors—Automatic status when requiredin construction agreement with you," automatically made Green an additional insuredwhen Ferrara entered into a purchase order with Scalamandre in which it agreed to"assume all the obligations and risks which . . . [Scalamandre] assumedtowards" Green. However, Green's reliance on the title of the policy provision ismisplaced as a heading "cannot alter . . . the effect of the unambiguouslanguage in the body of the clause itself" (Albany Med. Ctr. v Preferred Life Ins. Co. of N.Y., 19 Misc 3d209, 215 [Sup Ct, Albany County 2008]; see also Rivers v Sauter, 26 NY2d260, 262 [1970]). Alternatively, Green argues that the terms of the policy itself areambiguous because the policy can be read to mean that the named insured and the partyseeking to be an additional insured only need enter into written agreements with anotherparty, not necessarily with each other. Under this interpretation of the policy, there is aquestion of fact as to whether the incorporation by reference language in theScalamandre/Ferrara purchase order sufficed to establish a written agreement betweenFerrara and Green as contemplated by the insurance policy. However, this reading isinconsistent with Linarello and we see no reason to depart from this controllingprecedent (Linarello, 6 AD3d at 195). Moreover, Green's argument requiresreading terms into the policy that do not exist. The policy does not provide that there onlybe some writing, but rather that there be a written contract between the named insuredand the organization seeking coverage.
Here, there is no question of fact as to whether a written contract between Green andFerrara existed and, therefore, Liberty is entitled to a declaration in its favor. Havingreached a decision on this ground, we need not address Liberty's additional argumentraised on appeal. Concur—Tom, J.P., Sweeny, Acosta, DeGrasse and Richter, JJ.