Travelers Casualty & Surety Co. v. Dormitory Authority-State

732 F. Supp. 2d 347
CourtDistrict Court, S.D. New York
DecidedJuly 30, 2010
DocketMaster File No. 07 Civ. 6915(DLC)
StatusPublished
Cited by6 cases

This text of 732 F. Supp. 2d 347 (Travelers Casualty & Surety Co. v. Dormitory Authority-State) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Casualty & Surety Co. v. Dormitory Authority-State, 732 F. Supp. 2d 347 (S.D.N.Y. 2010).

Opinion

OPINION & ORDER

DENISE COTE, District Judge:

This complex litigation arises out of the construction of a 785,000 square-foot vertical campus (the “Building”) for Baruch College (“Baruch”), part of the City University of New York (“CUNY”), between 1998 and 2002.1 The litigation concerns, inter alia, the allegedly defective installation of an epoxy terrazzo flooring system by third-party defendanVfourth-party plaintiff Trataros Construction Inc. (“Trataros”) and Trataros’s subcontractor, fourth-party defendant Bartec Industries, Inc. (“Bartec”). Fourth-party defendants Assurance Company of America (“Assurance”),2 Harleysville Mutual Insurance Company a/k/a Harleysville Insurance Company (“Harleysville”),3 and Ohio Casualty Insurance Company (“Ohio Casualty”) (collectively, the “Insurers”) each issued commercial general liability (“CGL”) policies to Bartec covering various time periods relating to this litigation. In their fourth-party action, Trataros and Travelers Casualty and Insurance Company (“Travelers”), acting as administrator for Reliance Insurance Company (“Reliance”) and asserting claims assigned to it by Trataros,4 seek a declaration of coverage against the Insurers on the basis that Trataros is an additional insured under Bartec’s CGL policies. The Insurers each move for summary judgment seeking dismissal of Trataros’ and Travelers’ fourth-party claims.5 For the following reasons, those motions are granted.

BACKGROUND

The instant litigation has already been the subject of numerous Opinions by this Court, including, among others, Travelers Cas. & Sur. Co. v. Dormitory Auth., No. 07 Civ. 6915(DLC), 2008 WL 1882714 (S.D.N.Y. Apr. 25, 2008); Travelers Cas. & Sur. Co. v. Dormitory Auth., No. 07 Civ. 6915(DLC), 2008 WL 2567784 (S.D.N.Y. June 25, 2008); and In re G.M. Crocetti Inc., No. 08 Civ. 6239(DLC), 2008 WL 4601278 (S.D.N.Y. Oct. 15, 2008). Familiarity with all prior proceedings is assumed, and only the facts relevant to the pending motions are outlined herein. These facts, taken from the parties’ evidentiary submissions on summary judgment, are undisputed or construed in the light most favorable to Travelers.

[351]*351A. The Flooring Installation

Defendant Dormitory Authority-State of New York (“DASNY”) acted on CUNY’s behalf as “owner” of the construction project (“the Project”).6 In its role as owner, DASNY entered into more than a dozen prime contracts for the Project’s construction work, two of which — referred to by the parties as Contract No. 15 and Contract No. 16 — were awarded to Trataros. Contract No. 16, which was awarded on August 27, 1998, included, among other construction tasks, the installation of epoxy terrazzo flooring throughout various public spaces within the Building.

In order to carry out its work under its two prime contracts, Trataros entered into subcontracts with numerous entities, including G.M. Crocetti Inc. (“Crocetti”). On September 18, 1998, Trataros contracted with Crocetti for the latter to install, among other things, some portion of the epoxy terrazzo flooring. This epoxy terrazzo was to be installed on top of the concrete subfloor previously installed by another prime contractor, Shroid Construction Inc.

Due to design or construction errors, some portions of the concrete subfloor were insufficiently level to allow for the installation of the epoxy terrazzo flooring directly on the concrete subfloor. Accordingly, and with approval from TDX, DAS-NY issued Change Order No. GC2-028 on or about April 16, 2000 to compensate Trataros for the additional cost of installing a “ ‘self-leveling’ floor fill” (the “Underlayment”) on top of the concrete subfloor on the third through fourteenth floors of the Building. The purpose of the Underlayment was to level the concrete subfloor and render it suitable for Crocetti to install the epoxy terrazzo flooring. Together, the concrete subfloor, Underlayment, and epoxy terrazzo constitute the epoxy terrazzo flooring system (the “Flooring System”).

On May 8, 2000, Bartec submitted a written proposal to Trataros to furnish and install the Underlayment in the Building. On May 12, Trataros accepted Bartec’s bid and issued Purchase Order No. 16780 (the “Purchase Order”) directing Bartec to “furnish and install ‘self leveling’ floor fill from the 3rd floor through the 14th floor in accordance with [the May 8] Bartec Industries, Inc. proposal.”7 The Purchase Order incorporates numerous terms and conditions, including a requirement that Bartec add Trataros as an additional insured under Bartec’s CGL policies.8

Bartec began installing the Underlayment in or about July 2000. The primary material used by Bartec was “Conflow,”9 a [352]*352floor-fill compound manufactured by fourth-party defendant Dayton Superior Specialty Chemical Corp. a/k/a Dayton Superior Corporation (“Dayton” or “Con-spec”).10 The Underlayment was installed in varying degrees of thickness, ranging from approximately 1/8 inch to 1-3/4 inches, in order to establish the necessary floor elevations. Thereafter, Crocetti installed the epoxy terrazzo on top of the Underlayment.

By January 2001, problems with the completed Flooring System began to manifest in the Building. Hollow spots were detected in the Underlayment, and the epoxy terrazzo was not properly binding to the Underlayment. On January 26, 2001, Crocetti’s Terrazzo Manager sent a letter advising Trataros of certain problems that Crocetti had discovered with the Underlayment (the “January 26 Letter”). The January 26 Letter states, in pertinent part:

On a visit to the jobsite this date [January 26], we have discovered hollow spots in areas being leveled on the eighth floor.
We will not install terrazzo over these areas until they are corrected.
Please check installation procedures being used to install the leveling underlayment to ensure the presence of good bond to concrete substrate.

On February 28, 2001, TDX sent a letter to Trataros (“the February 28 Letter”) noting that TDX had observed, on specific floors, “areas where the terrazzo flooring installation has separated from the substrates” and “areas of delamination of the layers of the conflow floor fill.” The February 28 Letter directed Trataros to provide TDX with, inter alia, “[a] survey of the entire terrazzo installation for any other areas of uplift”; “[a] survey of the remaining exposed conflow installation for delamination”; and the results of a “core sample[ ]” test that Trataros had just performed. The February 28 Letter further directed that Trataros should “[a]dvise [TDX] as to the reason for the separation of the terrazzo and the delamination of the conflow”; “[a]dvise [TDX] as to the planned steps to be taken for remediation”; and conduct all remediation “in accordance with manufacturers authorization and A/E [architect’s/engineer’s] approval.”

In late February 2001, a Conspec representative visited the Building to inspect the problems with the Flooring System (the “Flooring Failure”). In a letter from Conspec to Trataros dated March 1, 2001 (“the March 1 Letter”), Conspec referenced two “area[s] of concern” based on its site visits.

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Travelers Casualty & Surety Co. v. Dormitory Authority-State
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TRAVELERS CAS. & SURTY v. Dormitory Auth.
732 F. Supp. 2d 347 (S.D. New York, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
732 F. Supp. 2d 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-casualty-surety-co-v-dormitory-authority-state-nysd-2010.