Duty to defend and indemnify – umbrella general liability insurance policy

Gotham Industrial Services, Inc. v. Falls Lake National Insurance Company and ACE Property & Casualty Insurance Company, No. 653777/2022 (N.Y. Sup. Ct., N.Y. Cnty., Feb. 21, 2024).

Mound Cotton’s client, ACE Property & Casualty Insurance Company, was granted summary judgment in an insurance coverage dispute involving a duty to defend and indemnify under an umbrella general liability insurance policy. The plaintiff, Gotham Industrial Services, sought coverage under its primary and umbrella general liability policies for the cost to defend and indemnify the owner and general contractor of a construction site against claims that an employee was injured at the job site.

Judge Bannon of the New York Supreme Court, New York County, determined that the Employer’s Liability exclusion in the ACE Policy precluded coverage for Gotham, as well as the owner and general contractor, because the underlying accident involved injury to an employee of “any contractor.” Although Gotham contended in its summary judgment opposition that the injured worker was an independent contractor, rather than an employee, the Court concluded that, even if that were the case, the ACE policy’s exclusion applied to “casual laborers,” a term that was defined as “any person providing work or materials to any insured for compensation of any type.”

The Court also rejected Gotham’s argument that ACE did not deny coverage “as soon as reasonably possible” under NY Insurance Law Sec. 3420(d)(2). Judge Bannon concluded that ACE first received notice of the claim via service of the complaint against it and that it timely denied coverage through its answer to the complaint.

Partners Hilary M. Henkind and Steven Nassi represented ACE Property & Casualty Insurance Company.


Share This