Utilizing a novel argument, the insured contended it had no duty to defend the additional insured until there was a finding of fault against the named insured.  The court rejected this argument in 373 Wythe Realty, Inc. v. Indian Harbor Ins. Co., 2010 U.S. Dist. LEXIS 45947 (E.D. N.Y. May 11, 2010).

   Wythe hired The Wrecking Group, Inc. to perform demolition and asbestos abatement work at Wythe's property.  Pursuant to the parties' contract, Wrecking purchased a general liability policy naming Wythe as an additional insured. 

   Wrecking hired a subcontractor to remove and dispose of asbestos at the property.  An employee of the subcontractor was injured when the roof on which he was working collapsed.  The employee sued Wythe and Wrecking, alleging they were negligent in allowing him to work on the unstable and high roof.

   Wythe sought a defense from Indian Harbor.  The policy defined Wythe as an additional insured only with respect to liability for bodily injury caused by Wrecking's negligence.  Indian Harbor refused to defend Wythe because the word "caused" meant that the insured, Wrecking, had to be adjudged liable before a defense was owed to Wythe. 

   Wythe sued Indian Harbor and moved for summary judgment.  The district court rejected Indian Harbor's argument, determining additional insured coverage was not contingent upon a liability finding.   The duty to defend an additional named insured was owed to same extent as it was owed to a named insured.

   Wythe also moved for reimbursement for its defense costs to date.  This request was denied because Wythe had not submitted any documentation, making it impossible to determine the amount of reimbursement.  Further, Indian Harbor was entitled to discovery on the amount of costs to ensure they were reasonable.