Although the excess insurer sought a narrow reading of "additional insured," the policy's failure to define the coverage allowed a broad reading of the term in Kerrigan v. RM Associates, Inc., No. 100316/08, 2009 N.Y. App. Div. LEXIS 9517 (N.Y. App. Civ. Dec. 29, 2009).
The decedent was killed in a construction accident. His Estate sued various contractors, alleging that the decedent had agreed to provide work, labor and services to Erin Erectors. One of the contractors counterclaimed against the Estate for contractual indemnification. In this coverage action, the Estate and Erin sued for indemnification coverage under an excess policy issued to Erin by Westchester Fire Insurance Company.
Westchester's policy listed Erin as the only "named insured," and defined the term "insured" to include, at Erin's option, any person, other than Erin, "included as an additional insured" in the underlying comprehensive general liability policy. The underlying policy listed Erin and the decedent as named insureds, but listed no additional insureds. Utilizing a strict interpretation, the lower court held because the decedent was not listed as an additional insured in the CGL policy, he was not covered under the excess policy.
On appeal, Plaintiffs argued the decedent was an "additional insured" within the meaning of Westchester's policy because he was a named insured in the underlying CGL policy. The appellate court agreed. The term "additional insured" was not defined in either the CGL or the excess policy. An ordinary interpretation of "additional insured" in the excess policy would mean anyone other than the "named insured" in the excess policy (i.e., Erin) who was insured under the underlying CGL policy (i.e., the decedent). Therefore, the estate was also covered by the excess policy.
