| Kel-Mar Designs, Inc. v Harleysville Ins. Co. of N.Y. |
| 2015 NY Slip Op 03607 [127 AD3d 662] |
| April 30, 2015 |
| Appellate Division, First Department |
[*1]
| Kel-Mar Designs, Inc.,Appellant, v Harleysville Insurance Company of New York et al.,Respondents. |
Kenney Shelton Liptak Nowak LLP, Buffalo (Timothy E. Delahunt of counsel), forappellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly ofcounsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Eileen A.Rakower, J.), entered January 14, 2014, which denied plaintiff's motion for summaryjudgment, granted defendants' motion for summary judgment, and declared thatdefendants do not have a duty to defend or indemnify plaintiff, Frost Equities, orWalgreens in the underlying personal injury action, unanimously reversed, on the law,without costs, the declaration vacated, defendants' motion denied, and plaintiff's motiongranted to the extent of declaring that defendant Harleysville Insurance Company of NewYork (defendant), as co-primary insurer with RLI Insurance Company (RLI), has a dutyto defend and indemnify plaintiff and to pay its proportionate share of defense andindemnity costs in the underlying action.
The insurance policy that defendant provided to subcontractor Arcadia (theHarleysville policy) provides additional insured coverage to plaintiff general contractoronly for "liability caused, in whole or in part, by the acts or omissions of [Arcadia]. . . in the performance of [Arcadia's] ongoing operations for the additionalinsured." The loss at issue in the underlying action—a personal injury suffered byan Arcadia employee when he lost his footing on a stairway while working on aconstruction project—resulted, at least in part, from "the acts or omissions" of theArcadia employee while performing his work (i.e., his loss of footing while on thestairway), regardless of whether the Arcadia employee was negligent or otherwise at faultfor his mishap (see StraussPainting, Inc. v Mt. Hawley Ins. Co., 105 AD3d 512, 513 [1st Dept 2013],mod on other grounds 24 NY3d 578 [2014]; W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d530, 530-531 [1st Dept 2012]). Accordingly, defendant is obligated both to defendand indemnify plaintiff as an additional insured under the Harleysville policy.
The Harleysville policy, by its plain terms, provides excess coverage to plaintiff,because the subcontract between plaintiff and Arcadia does not "specifically" require theHarleysville policy to provide plaintiff with primary coverage. However, because boththe Harleysville policy and the insurance policy that plaintiff obtained from RLI purportto be excess to the other, the excess insurance provisions in the policies cancel each otherout, and defendant and RLI, as co-insurers on a primary basis, are required to shareplaintiff's defense costs in the underlying action (see Great N. Ins. Co. v MountVernon Fire Ins. Co., 92 NY2d 682, 686-687 [1999]).
[*2] Defendant is not obligated to indemnify and defendWalgreens and Frost Equities. Those entities are not additional insureds under the plainterms of the Harleysville policy, as Arcadia did not perform operations for them pursuantto a written contract. Concur—Friedman, J.P., Renwick, Moskowitz, Richter andClark, JJ.