An employee of Nava Restaurant was injured when he fell down the stairs while at work. He sued the property owner, Crescent One Buckhead Plaza, claiming negligent maintenance of the stairs. Crescent tendered the suit to Nava and its insurer, Transcontinental Insurance Company (TIC), based on the language of the lease and because Crescent was listed as an additional insured under Nava's liability policy. The lease provided Nava would indemnify and hold Crescent harmless from any loss caused by Nava unless the loss resulted solely from Crescent's negligence. The lease further provided Nava would secure liability insurance, listing both Nava and Crescent as "named insureds" and that Nava's policy would be primary.
Nava's policy named Crescent as an "additional insured" under the policy's "Noncontractor's Additional Insured Endorsement." This endorsement defined as insureds the "additional insureds . . . whom you are required to add as an additional insured on this policy under a written contract or written agreement." Nava's policy further provided it was excess for any additional insureds' policies unless a written agreement required the TIC coverage to be primary. Nevertheless, TIC denied coverage to Crescent because TIC considered its policy excess to Crescent's own policy with Great Northern Insurance Company, ignoring that Nava's lease required that TIC's coverage for Crescent be primary.
Crescent filed a third-party claim against Nava and TIC for contribution and indemnification from the plaintiff's claims. The trial court granted summary judgment to Crescent against both Nava and TIC, and the appellate court affirmed. The lease clearly required Nava to defend and indemnify Crescent. Nava would also be liable to the extent the insurance obtained on behalf of Crescent did not provide a full defense and indemnification in favor of Crescent.
The court further determined that TIC was obligated to defend and indemnify Crescent for plaintiff's claims. The terms of TIC's policy provided that coverage for Crescent was primary. Moreover, the Great Northern policy provided it was excess another party's policy to which the named insured was an "additional insured" under the other policy. Therefore, Great Northern's policy was excess over TIC's policy because Crescent was an additional insured under TIC's policy.
