Savino, Gorfinkel & Misiti secure declaratory judgment

August 11, 2015 | Insurance Coverage

William Savino, Paul Gorfinkel and Frank Misiti secured a declaratory judgment in Time Cap Development Corp. v. Colony Insurance Company, et al., v. Cincinnati Insurance Company, (New York State Supreme Court, Onondaga County) that an insurer was “wholly excess” to the insurance issued to the insurers’ mutual insured for an underlying personal injury action.

The underlying action alleged that an individual suffered injuries when he fell from a ladder working on a construction project in a building in Chittenango, New York.  The underlying plaintiff was an employee of Parish Iron Works, a subcontractor on the construction project.  The mutual insured, Time Cap Development Corp., was the general contractor of the construction project.

The underlying lawsuit was tendered to Time Cap’s general liability insurer and the general liability insurer of Parish.  Time Cap’s insurer accepted the defense of Time Cap for the underlying lawsuit, but Parish’s insurer disclaimed any obligation to defend or indemnify Time Cap based on an employee exclusion contained in its general liability policy.

The Court determined that the disclaimer letter issued by Parish’s insurer was untimely as a matter of law and that Time Cap was an additional insured under the insurance contract issued by Parish’s insurer.  The Court also determined that the requirements of New York Insurance Law §3420(d) of a timely disclaimer did not apply between insurers, but that  the Court still must examine the terms of the respective insurance contracts to determine priority of coverage.  After an examination of the respective insurance contracts, the Court determined that the plain language of the insurance contract issued to Time Cap was “wholly excess” to the insurance provided to Time Cap, as an additional insured, that was issued to Time Cap’s subcontractor.

As a result, the Court granted the cross-motion declaring that Parish’s insurer has a primary duty to defend Time Cap as an additional insured, without contribution from Time Cap’s insurer.


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