Insurance Coverage Group

Gordon & Silber is regularly retained by insurance companies to prosecute and defend declaratory judgment actions and to write coverage opinions including Chartis, National Interstate and New York Central Mutual.

The firm’s coverage expertise informs its handling of all its cases, and assures carriers that our attorney will actively seek out all available sources of “other insurance” to participate in the defense of the action.

The institution and defense of declaratory judgment actions is a common feature of the firm’s premises liability practice.

Jon D. Lichtenstein specializes in insurance coverage litigation and pre-litigation matters for Chartis, National interstate Insurance Company, New York Central Mutual Insurance Co., among others. Mr. Lichtenstein has been retained to seek several million dollars of excess insurance coverage in connection with the two local crane accidents that occurred in 2008. See the Representative Case.

  • Mr. Lichtenstein maintains an insurance coverage blog “Let’s Talk Coverage” which can be viewed at jonlichtenstein.blogspot.com.
  • He also regularly submits articles involving insurance coverage to the New York Law Journal. His most recent article was titled “First Department Decisions in Conflict Over ‘Other Insurance’ Provisions”.

Read articles about Insurance Coverage on our blog.

INSURANCE COVERAGE – BAD FAITH
APPELLATE DIVISION, 768 N.Y.S.2D 16, FIRST DEPARTMENT

The Plaintiff was the excess insurance carrier for a general contractor in a serious construction accident case that was settled by the excess and primary carrier for the general contractor. Although the codefendant owner of the premises agreed that the settlement was reasonable, it refused contribute anything more than $50,000 to the settlement for its vicarious liability pursuant to the Labor Law. The general contractor’s carriers rejected the offer as insufficient. The underlying case was settled with the excess carrier reserving its right to seek a 1/3 contribution (or $1 million) from the owner’s carrier, Valley. A declaratory judgment action was instituted by the excess carrier and the owner’s carrier counterclaimed against the excess and primary carrier for bad faith, alleging that they had manipulated the settlement by assigning $1 million dollars of liability to the owner, notwithstanding that the only basis of liability against the owner was statutory pursuant to the Labor Law. After the trial court found for the general contractor’s carriers and ordered the owner’s carrier to reimburse the excess carrier for $1 million dollars and dismissed the claims for bad faith, the decision was appealed. We represented the primary carrier to the bad faith claim. We argued that the primary carrier could not be found liable for bad faith since prior to the settlement it had tendered the limits of its policy and thus, had done everything in its power to protect the interests of its coinsured, the owner. Further, we argued that bad faith requires that the defendant carrier have exercised exclusive control over the insured’s defense, which element did not exist, since the owner insisted on having its own representation. The decision of the trial court reversed to the extent of requiring Valley to contribute $1 million dollars to the settlement, but affirmed with respect to its dismissal of the bad faith claim.

G&S OBTAINS A DECLARATORY JUDGMENT THAT NEW YORK CRANE, THE OWNER OF A TOWER CRANE THAT COLLAPSED IN 2008, WAS ENTITLED TO $11 MILLION OF INSURANCE COVERAGE
COVERAGE FROM THE INSURANCE CARRIER OF THE CRANE LESSEE/OPERATOR WITH RESPECT TO THE VARIOUS WRONGFUL DEATH, PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS

G&S obtains a declaratory judgment that New York Crane, the owner of a tower crane that collapsed in 2008, was entitled to $11 million of insurance coverage from the insurance carrier of the crane lessee/operator with respect to the various wrongful death, personal injury and property damage claims.

Zurich American Insurance Co. (“Zurich”), the carrier for the crane lessee Sorbara Construction (“Sorbara”) disclaimed coverage on the grounds that the additional insured coverage for NY Crane only existed to the extent that the accident occurred as a result of Sorbara’s work for NY Crane. Zurich argued that Sorbara was operating the crane for the general contractor, not NY Crane and thus, there was no coverage for NY Crane. Zurich relied on a 2011 First Department decision, Admiral v. East 51st Street, which involved an identical situation involving another Manhattan crane collapse in 2008. Notwithstanding, this decision appeared to be exactly on point, we were able to distinguish it on the grounds that the “working for” requirement in the Zurich endorsement only applied where the accident arose out of the work of an entity working for the named insured. Here, because Sorbara itself was operating the crane, the “working for” condition was inapplicable. Our argument involved a comparative analysis of the additional insured endorsement in the subject case with the endorsement in the Admiral case and turned on the precise punctuation and indentation in the Zurich endorsement.

The Court also granted NY Crane’s motion to strike Zurich’s attempted reservation of rights based on the expected/intended acts exclusion that was set forth as an affirmative defense in an amended answer served after the District Attorney secured an indictment based on the collapse. We argued that the amended answer was procedurally defective since it was served without leave of court. We also argued that the assertion of the exclusion was untimely as a matter of law based on Insurance Law Section 3420(d).

Finally, the court agreed that the entire $11 million of Zurich’s excess coverage would contribute on a pro-rata basis with NY Crane’s own excess coverage even though the lease only required the lessee to provide $5 million in coverage.

Unfortunately, the court would not declare that NY Crane was entitled to be indemnified under the Zurich policy, holding this was an issue that required resolution by the trier of fact. The court found it was pre-mature to determine that the accident occurred, in part, due to the acts or omissions of Sorbara, notwithstanding that Sorbara was operating the crane at the time of the incident.