Because the contract between the parties failed to state that the insured was obligated to name the building owner as an additional insured, the owner was not an additional insured. Am. Empire Surplus Lines Ins. Co. v. Endurance Am. Specialty Ins. Co., 2016 N.Y. Misc. LEXIS 53 (N.Y. App. Div. Jan. 7, 2016).
Dayton Towers Corporation contracted with Skyline Restoration, Inc. as general contractor to perform work at Dayton's building. Skyline contracted with All Day Restoration Inc. to perform restoration work on the exterior facades. An employee of All Day slipped and fell due to ice and snow on the roof and sued Dayton for personal injuries.
All Day was insured by Endurance. American Empire insured Skyline. After the injured employee's suit was filed, American Empire tendered the defense and indemnification of Dayton as an additional insured under the Endurance policy to All Day and Endurance. Endurance rejected the tender and American Empire filed suit for declaratory judgment. American Empire and Endurance both moved for summary judgment. American Empire argued that Endurance was obligated to defend and indemnify Dayton as an additional insured on a primary basis, and the American Empire's obligations, if any, were excess.
The court determined that Dayton was not an additional insured under the Endurance policy. By endorsement, the Endurance policy provided that additional insured coverage would be provided to entities as "required by written contract." Nowhere in the All Day subcontract with Skyline was it expressly or explicitly stated that All Day would provide additional insured coverage for Dayton.
American Empire relied upon the All Day Subcontract, which provided that "the General Conditions governing this Subcontract shall be the edition of AIA Document A201, General Conditions of the Contract of Construction." AIA Document A201 stated, 'The Contractor Shall cause the commercial liability coverage required by the Contract Documents to include . . . the Owner. . ." American Empire argued that this language provided Dayton, as the owner of the building, with additional insured status because the language was incorporated into the All Day Subcontract.
The court rejected this argument because AIA Document A210 was not a "written contract" requiring Dayton to be named as an insured. Therefore, American Empire's motion for summary judgment was denied. Endurance's motion for summary judgment declaring it had no duty to defend or indemnify Dayton as an additional insured was granted.
