Bovis Lend Lease LMB, Inc. v. Great American Insurance

53 A.D.3d 140, 855 N.Y.S.2d 459
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 10, 2008
StatusPublished
Cited by287 cases

This text of 53 A.D.3d 140 (Bovis Lend Lease LMB, Inc. v. Great American Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bovis Lend Lease LMB, Inc. v. Great American Insurance, 53 A.D.3d 140, 855 N.Y.S.2d 459 (N.Y. Ct. App. 2008).

Opinion

OPINION OF THE COURT

Friedman, J.

This appeal concerns a dispute among several insurance companies over the priority of coverage for the construction [142]*142manager and owner of a construction project in a wrongful death action. Based on an examination of the terms and role of each insurance policy at issue, we hold that the additional insured coverage afforded the construction manager and owner by the umbrella liability policy of the subcontractor that employed the decedent is excess to the construction manager’s and owner’s coverage under the construction manager’s own primary insurance. We also hold, based on the same examination, that the construction manager’s and owner’s additional insured coverage under the subcontractor’s umbrella policy is excess to their coverage under the primary insurance maintained by the general contractor that retained the subcontractor. We reach these conclusions notwithstanding that the insurance provisions of the underlying subcontract apparently required the subcontractor to make all of the insurance it provided to the construction manager and owner applicable on a primary basis, without contribution by the construction manager’s and owner’s own insurance. Our reasoning is that, under applicable precedent, an umbrella or excess liability insurance policy should be treated as just that, and not as a second layer of primary coverage, unless the policy’s own terms plainly provide for a different result. To hold otherwise would, we believe, merely sow uncertainty in the insurance market.

This matter arises from a fatal accident that occurred on June 10, 2003, in the course of the construction of the Bronx Criminal Court Complex, a project for which Bovis Lend Lease LMB, Inc. (Bovis) was retained as construction manager by the governmental owner, the Dormitory Authority of the State of New York (DASNY). The decedent, Joao Goncalves, was an employee of J & A Concrete Corp. (J & A), a subcontractor of the project’s general construction contractor, Stonewall Contracting Corp. (Stonewall). The decedent allegedly fell down an elevator shaft on which work had been performed by A.J. McNulty & Co., Inc. (A.J. McNulty), a subcontractor of SMI-Owen Steel Company, Inc. (SMI-Owen), the structural steel and stair contractor for the project. Stonewall and SMI-Owen each contracted separately with DASNY, and were not in contractual privity with each other.1

The decedent’s estate has commenced a wrongful death action in Bronx County Supreme Court against, among others, [143]*143DASNY, the City of New York (NYC), Bovis, and Stonewall (Maria Goncalves, etc., et al. v The Dormitory Authority of the State of New York, et al., Index No. 21460/04 [the Goncalves action]). The instant action has been brought by plaintiffs herein—Bovis, DASNY, NYC, and Bovis’s commercial general liability (CGL) insurance carrier, Illinois National Insurance Company (Illinois)—to obtain a determination concerning the entitlement of Bovis, DASNY and NYC (collectively, the Bovis plaintiffs) to a defense and indemnification in the Goncalves action from the insurers of Stonewall, J & A and A.J. McNulty. The following insurers (with relevant policy limits noted) have been named as direct defendants in this action: (1) QBE Insurance Corporation (QBE), J & A’s primary CGL carrier (policy limit of $1 million per occurrence); (2) United National Insurance Corp. (United), J & A’s commercial umbrella liability carrier (policy limit of $5 million per occurrence, in excess of primary coverage); (3) Liberty Insurance Underwriters, Inc. (Liberty), Stonewall’s primary CGL carrier (policy limit of $1 million per occurrence); (4) Westchester Fire Insurance Company (Westchester), Stonewall’s commercial umbrella liability carrier (policy limit of $10 million per occurrence, in excess of primary coverage); and (5) Great American E & S Insurance Company, sued herein as Great American Insurance Company (Great American), A.J. McNulty’s primary CGL carrier (policy limit of $1 million per occurrence). The relevant limit of the Bovis plaintiffs’ primary CGL coverage under the policy issued to Bovis by plaintiff Illinois (which covers DASNY and NYC as additional insureds) is $1 million per occurrence.2

After the commencement of this action, QBE agreed to defend and indemnify the Bovis plaintiffs as additional insureds under J & A’s primary policy, up to that policy’s $1 million per-occurrence limit. The Bovis plaintiffs’ status as additional insureds under the United, Liberty and Westchester policies is also undisputed.3 Still in dispute, however, is what the priority of coverage will be, upon exhaustion of the QBE policy, among the remaining defendants, as well as plaintiff insurer Illinois.

[144]*144On opposing motions for summary judgment by plaintiffs, United and Liberty, Supreme Court declared, in substance, that the order of coverage for the Bovis plaintiffs, after exhaustion of the QBE policy, would be United first, Liberty second, West-chester third, and Illinois fourth. On United’s appeal and West-chester’s cross appeal, we modify to declare that the order of coverage for the Bovis plaintiffs after QBE is Liberty first, Illinois second, and, third, United and Westchester, sharing rat-ably.

Supreme Court apparently adopted the view of plaintiffs and Liberty that the priority of coverage among the subject policies is dictated by the terms of the underlying trade contracts (i.e., the DASNY/Stonewall contract and the Stonewall/J & A subcontract), even if an examination of the terms of the various insurance policies would yield a different result. The trade contracts required Stonewall and J & A to obtain $5 million of “additional insured” coverage for the Bovis plaintiffs that would be “primary to any other insurance maintained by the [Bovis plaintiffs],” and to which the Bovis plaintiffs’ own insurance would be excess.4 Accordingly, Supreme Court deemed the Bovis [145]*145plaintiffs’ additional.insured coverage under J & A’s United umbrella policy to be triggered immediately upon exhaustion of the $1 million limit of J & A’s underlying QBE policy, before the coverage under either of Stonewall’s policies or under Bovis’s own policy. This is a mistaken approach.

An insurance policy is a contract between the insurer and the insured. Thus, the extent of coverage (including a given policy’s priority vis-a-vis other policies) is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage. As the Court of Appeals has stated, New York law “recognize [s] the right of each insurer to rely upon the terms of its own contract with its insured” (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 373 [1985]; see also United States Liab. Ins. Co. v Mountain Val. Indem. Co., 371 F Supp 2d 554, 558 [SD NY 2005] [“insurance policy provisions take precedence over conflicting provisions found in contracts between insureds”]; Travelers Indem. Co. v American & Foreign Ins. Co., 286 AD2d 626 [2001] [“it is the policy provisions that control (priority of coverage) and not the provisions of the subcontract” between the insureds]; United States Fid. & Guar. Co. v CNA Ins. Cos.,

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Cite This Page — Counsel Stack

Bluebook (online)
53 A.D.3d 140, 855 N.Y.S.2d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bovis-lend-lease-lmb-inc-v-great-american-insurance-nyappdiv-2008.