Indirect notice to the insurer was sufficient to trigger coverage for the additional insured under a liability policy. Spoleta Constr., LLC v. Aspen Ins. UK Ltd., 2014 N.Y. App. Div. LEXIS 5174 (N.Y. App. Div. July 11, 2014).
An employee of the subcontractor was injured at the construction project on October 20, 2008. The general contractor was named as an additional insured on the subcontractor's CGL policy with Aspen. Under the subcontract, the subcontractor also agreed to defend and indemnify the general contractor for all claims arising out of the subcontractor's work.
The general contractor did not receive notice of the accident until late December 2009 in a letter from the injured employee's attorney. On January 27, 2010, the general contractor's liability carrier sent a letter to the subcontractor giving notice of the employee's claim and requesting that the subcontractor put its carrier on notice. On February 9, 2010, the subcontractor sent to Aspen a claim form with the January 2010 letter attached.
The injured employee commenced suit. The general contractor demanded that Aspen defend and indemnify in a letter dated May 27, 2010, but Aspen disclaimed coverage on the basis of untimely notice.
The general contractor sued Aspen. The trial court granted Aspen's motion to dismiss. The appellate court reversed.
Aspen's policy required the insured to "see to it" that Aspen was notified "as soon as practicable of an occurrence that may result in a claim." The December 2009 letter from the general contractor's attorney was notice of an "occurrence . . . which may result in a claim."
The January 2010 letter and form that the subcontractor submitted satisfied the insured's duty to notify Aspen of the occurrence "as soon as practicable." The policy did not require that written notice of an occurrence come directly from the general contractor; it simply required that the general contractor "see to it" that Aspen was notified. Finally, the May 2010 letter constituted notice of a "claim" based upon the employee's April 15, 2010 commencement of the underlying action.
Accordingly, the trial court erred in dismissing the complaint against Aspen because the documentary evidence did not conclusively establish a defense to the general contractor's claim as a matter of law.
