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FILED: NEW YORK COUNTY CLERK 01/12/2023 10:06 AM INDEX NO. 656604/2022
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 01/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.: 656604/2022
HUDSON EXCESS INSURANCE COMPANY,
Plaintiff,
NOTICE OF ENTRY
-against-
CERTAIN UNDERWRITERS AT LLOYD’S LONDON
subscribing to Policy No. LCC-000058,
Defendant.
PLEASE TAKE NOTICE THAT annexed hereto as is a true and correct copy of the
Decision and Order of the Hon. Arlene P. Bluth, J.S.C. dated January 5, 2023 and entered with
the Clerk of the Court on January 6, 2023.
Dated: New York, New York
January 12, 2023
Yours, etc.
MELITO & ADOLFSEN P.C.
By: /s/ Michael F. Panayotou
Ignatius John Melito, Esq.
Michael F. Panayotou, Esq.
233 Broadway, Suite 1010
New York, New York 10279
Telephone: (212) 238-8900
Attorneys for Plaintiff
TO: All Counsel of Record, via NYSCEF
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
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INDEX NO. 656604/2022
HUDSON EXCESS INSURANCE COMPANY
MOTION DATE 01/03/2023
Plaintiff,
MOTION SEQ. NO. 001
-v-
CERTAIN UNDERWRITERS AT LLOYD'S LONDON
DECISION + ORDER ON
SUBSCRIBING TO POLICY NO. LCC-000058,
MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34
were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff’s motion for summary judgment and a declaration that its policy is excess over a
policy issued by defendant relating to a matter pending in the Bronx is granted. The cross-motion
by defendant is denied.
Discussion
In this declaratory judgment action, plaintiff alleges that non-party First Mercury
Insurance Company (“First Mercury”) issued a Commercial General Liability Policy (“CGL”) to
A&GV Stucco Construction Corp. (“Stucco”) during the period of September 18, 2015 through
September 18, 2016 with a limit of $1 million per occurrence. Plaintiff argues that it issued an
excess policy to Stucco for the same period with limits of $5 million per occurrence.
Plaintiff contends that defendant issued its own CGL policy to 485 Seventh Ave
Associates LLC (“485 Seventh”) and Magnetic Builders Group (“Magnetic”) for the period from
August 31, 2015 through June 30, 2017 with a limit of $2 million per occurrence.
656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 1 of 6
LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058
Motion No. 001
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On June 7, 2016, nonparty Edwin Mena (an employee of Stucco) was purportedly injured
while working on a construction project at premises owned by 485 Seventh and where Magnetic
was hired as the general contractor. Plaintiff alleges that Magnetic hired Stucco to do demolition
work for the project. Mr. Mena insists he was hurt when a piece of concrete ceiling fell on him
while he was demolishing a wall. He brought a lawsuit in 2017 in Bronx County arising out of
this incident. Plaintiff observes that the Bronx court awarded summary judgment to plaintiff
under Labor Law § 240(1) as against 485 Seventh and Magnetic. A trial on damages is
forthcoming.
Plaintiff contends that 485 Seventh and Magnetic tendered to First Mercury (the primary
policy issued to Stucco) and that First Mercury assumed the defense of both of these parties in
Mena’s litigation. The issue in this case is what happens after First Mercury’s limit of $1 million
is exhausted. Plaintiff contends that its policy is excess to defendant’s insurance policy.
Defendant disagrees and insists that plaintiff’s policy should be implicated before defendant’s
policy. In other words, after the million dollars is exhausted, which policy pays first? Who
comes second and who comes third?
Plaintiff points to the language of defendant’s policy in support of its claim that
defendant’s policy is a primary insurance policy and only functions as excess over other primary
policies; on the other hand, it claims that its policy is a true excess policy.
Defendant insists its policy is excess to both the First Mercury policy and plaintiff’s
policy. It cross-moves for a declaration that plaintiff’s policy must be exhausted before its policy
is implicated. Defendant stresses that 485 Seventh and Magnetic were added as additional
insureds on Stucco’s policy issued by First Mercury and that plaintiff’s policy is an excess policy
that should come second.
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LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058
Motion No. 001
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Defendant, arguing it should come third, directs the Court to the language of the
plaintiff’s policy and insists that the clear intent was to provide a second layer of coverage after
First Mercury’s policy is exhausted. It contends that plaintiff’s policy is primary and non-
contributory and relies upon the Excess Liability Primary and Non-Contributory Coverage
Endorsement for the proposition that plaintiff’s policy is not an excess policy. Defendant also
points out that the subcontract between Stucco and Magnetic required Stucco to obtain coverage
in the amount of $6 million per occurrence and so the clear intent was that plaintiff’s policy
should be exhausted immediately after First Mercury’s policy.
In reply, plaintiff emphasizes that the underlying trade contract does not change the terms
of an insurance policy and insists it provided only an excess policy. It maintains that while its
policy would be primary with respect to other excess policies, it should not take priority over
defendant’s policy.
In reply to its cross-motion, defendant argues that the endorsement as well as the
premium charged to the insured requires the Court to conclude that plaintiff’s policy is a primary
to defendant’s policy.
Discussion
“An insurance policy is a contract between the insurer and the insured. Thus, the extent
of coverage (including a given policy's priority vis-a-vis other policies) is controlled by the
relevant policy terms, not by the terms of the underlying trade contract that required the named
insured to purchase coverage” (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140,
145, 855 NYS2d 459 [1st Dept 2008]).
656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 3 of 6
LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058
Motion No. 001
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There is no dispute that First Mercury’s policy (a policy issue to plaintiff’s employer that
named 485 Seventh and Magnetic as additional insureds) is the primary policy. The question on
this motion relies upon the language of the policies issued by plaintiff and defendant.
Plaintiff’s policy (self- described as excess) issued to Stucco provides in pertinent part
that:
“8. Other Insurance a. This insurance is excess over, and shall not contribute with
any of the other insurance, whether primary, excess, contingent or on any other
basis. This condition will not apply to insurance specifically written as excess over
this Coverage Part. When this insurance is excess, if no other insurer defends, we
may undertake to do so, but we will be entitled to the insured's rights against all
those other insurers” (NYSCEF Doc. No. 9 at 12).
It also contains an endorsement entitled Excess Liability Primary and Non-Contributory
Coverage which states that:
“Section III – Conditions, 8. Other Insurance is amended and the following added:
It is agreed that such insurance as is afforded by this policy for the benefit of an
Additional Insured shall be primary to, and on a non-contributory basis with, any
other excess insurance available to such Additional Insured, provided that you are
specifically required by a written contract to provide such insurance and the
contract is executed by you before any “event.” Coverage shall be limited to the
extent required by the written contract. All other terms and conditions of this policy
remain unchanged” (id. at 42).
A plain reading of these provisions suggests that this insurance coverage, when provided
to an additional insured such as 485 Seventh or Magnetic, is primary with respect to any other
excess insurance available to an additional insured. The Court also concludes that the policy
clearly provides excess coverage. The next issue, then, is whether defendant’s policy is primary
or excess.
Defendant’s policy (styled as a typical CGL policy) provides that:
“4 Other Insurance. If other valid and collectible insurance is available to the insured for a
loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as
follows:
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a. Primary Insurance. This insurance is primary except when Paragraph b below
applies. If this insurance is primary, our obligations are not affected unless an of the other
insurance is also primary. Then, we will share with all that other insurance by the method
described in Paragraph c below.
b. Excess Insurance
1) This insurance is excess over . . . b) Any other primary insurance available to
you covering liability for damages arising out of the premises or operations, or the products
and completed operations, for which you have been added as an additional insured by
attachment of an endorsement” (NYSCEF Doc. No. 10 at 49).
The Court concludes the following: plaintiff’s policy is excess over defendant’s policy.
That is, defendant has to pay before plaintiff has to pay. The fact is that defendant’s policy is not
styled as an excess insurance policy and its efforts to transform its policy into providing excess
coverage and plaintiff’s policy into a primary policy are unavailing. Defendant’s policy clearly
states it is primary except where other primary insurance is available. That is what happened
here—First Mercury stepped in and provided primary coverage. But there is no basis to find that
plaintiff’s policy provides primary coverage.
Plaintiff’s policy is clearly designed to be an excess policy and cannot be considered
primary, as defendant argues, in order to jump ahead of defendant’s policy. As noted above, the
fact that the underlying contract between Stucco and Magnetic may have required Stucco to
procure more coverage is irrelevant to this decision (see Travelers Indemn. Co. v Am. and
Foreign Ins. Co., 286 AD2d 626, 730 NYS2d 231 (Mem) [1st Dept 2001] [concluding that “In
reaching this conclusion, the motion court properly declined to give evidentiary weight to the
insurance procurement provisions of the subcontract between plaintiff general contractor and the
injured party's employer, since it is the policy provisions that control and not the provisions of
the subcontract]).
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The Court cannot import the insurance procurement provisions of the underlying
subcontract to plaintiff’s policy. It can only view the terms of the various polices and those
policies yield the conclusion that plaintiff’s policy is excess over defendant’s policy.
Accordingly, it is hereby
ORDERED that plaintiff’s motion is granted and defendant’s cross-motion is denied; and
it is further
DECLARED that plaintiff’s policy is excess over defendant’s policy (Policy No. LCC-
000058) with respect to a pending action in the New York Supreme Court, Bronx County captioned
Edwin Mena v 485 Seventh Avenue Associates LLC, et al., Index Number 20345/2017); and it is
further
ORDERED that the Clerk is directed to enter judgment accordingly in favor of plaintiff
and against defendant along with costs and disbursements upon presentation of proper papers
therefor.
1/5/2023 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 6 of 6
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FILED: NEW YORK COUNTY CLERK 01/12/2023 10:06 AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 01/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No.: 656604/2022 HUDSON EXCESS INSURANCE COMPANY, Plaintiff, NOTICE OF ENTRY -against- CERTAIN UNDERWRITERS AT LLOYD’S LONDON subscribing to Policy No. LCC-000058, Defendant. PLEASE TAKE NOTICE THAT annexed hereto as is a true and correct copy of the Decision and Order of the Hon. Arlene P. Bluth, J.S.C. dated January 5, 2023 and entered with the Clerk of the Court on January 6, 2023. Dated: New York, New York January 12, 2023 Yours, etc. MELITO & ADOLFSEN P.C. By: /s/ Michael F. Panayotou Ignatius John Melito, Esq. Michael F. Panayotou, Esq. 233 Broadway, Suite 1010 New York, New York 10279 Telephone: (212) 238-8900 Attorneys for Plaintiff TO: All Counsel of Record, via NYSCEF 1 of 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 656604/2022 HUDSON EXCESS INSURANCE COMPANY MOTION DATE 01/03/2023 Plaintiff, MOTION SEQ. NO. 001 -v- CERTAIN UNDERWRITERS AT LLOYD'S LONDON DECISION + ORDER ON SUBSCRIBING TO POLICY NO. LCC-000058, MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for JUDGMENT - SUMMARY . Plaintiff’s motion for summary judgment and a declaration that its policy is excess over a policy issued by defendant relating to a matter pending in the Bronx is granted. The cross-motion by defendant is denied. Discussion In this declaratory judgment action, plaintiff alleges that non-party First Mercury Insurance Company (“First Mercury”) issued a Commercial General Liability Policy (“CGL”) to A&GV Stucco Construction Corp. (“Stucco”) during the period of September 18, 2015 through September 18, 2016 with a limit of $1 million per occurrence. Plaintiff argues that it issued an excess policy to Stucco for the same period with limits of $5 million per occurrence. Plaintiff contends that defendant issued its own CGL policy to 485 Seventh Ave Associates LLC (“485 Seventh”) and Magnetic Builders Group (“Magnetic”) for the period from August 31, 2015 through June 30, 2017 with a limit of $2 million per occurrence. 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 1 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 1 2 of 6 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 On June 7, 2016, nonparty Edwin Mena (an employee of Stucco) was purportedly injured while working on a construction project at premises owned by 485 Seventh and where Magnetic was hired as the general contractor. Plaintiff alleges that Magnetic hired Stucco to do demolition work for the project. Mr. Mena insists he was hurt when a piece of concrete ceiling fell on him while he was demolishing a wall. He brought a lawsuit in 2017 in Bronx County arising out of this incident. Plaintiff observes that the Bronx court awarded summary judgment to plaintiff under Labor Law § 240(1) as against 485 Seventh and Magnetic. A trial on damages is forthcoming. Plaintiff contends that 485 Seventh and Magnetic tendered to First Mercury (the primary policy issued to Stucco) and that First Mercury assumed the defense of both of these parties in Mena’s litigation. The issue in this case is what happens after First Mercury’s limit of $1 million is exhausted. Plaintiff contends that its policy is excess to defendant’s insurance policy. Defendant disagrees and insists that plaintiff’s policy should be implicated before defendant’s policy. In other words, after the million dollars is exhausted, which policy pays first? Who comes second and who comes third? Plaintiff points to the language of defendant’s policy in support of its claim that defendant’s policy is a primary insurance policy and only functions as excess over other primary policies; on the other hand, it claims that its policy is a true excess policy. Defendant insists its policy is excess to both the First Mercury policy and plaintiff’s policy. It cross-moves for a declaration that plaintiff’s policy must be exhausted before its policy is implicated. Defendant stresses that 485 Seventh and Magnetic were added as additional insureds on Stucco’s policy issued by First Mercury and that plaintiff’s policy is an excess policy that should come second. 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 2 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 2 3 of 6 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 Defendant, arguing it should come third, directs the Court to the language of the plaintiff’s policy and insists that the clear intent was to provide a second layer of coverage after First Mercury’s policy is exhausted. It contends that plaintiff’s policy is primary and non- contributory and relies upon the Excess Liability Primary and Non-Contributory Coverage Endorsement for the proposition that plaintiff’s policy is not an excess policy. Defendant also points out that the subcontract between Stucco and Magnetic required Stucco to obtain coverage in the amount of $6 million per occurrence and so the clear intent was that plaintiff’s policy should be exhausted immediately after First Mercury’s policy. In reply, plaintiff emphasizes that the underlying trade contract does not change the terms of an insurance policy and insists it provided only an excess policy. It maintains that while its policy would be primary with respect to other excess policies, it should not take priority over defendant’s policy. In reply to its cross-motion, defendant argues that the endorsement as well as the premium charged to the insured requires the Court to conclude that plaintiff’s policy is a primary to defendant’s policy. Discussion “An insurance policy is a contract between the insurer and the insured. Thus, the extent of coverage (including a given policy's priority vis-a-vis other policies) is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage” (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 145, 855 NYS2d 459 [1st Dept 2008]). 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 3 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 3 4 of 6 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 There is no dispute that First Mercury’s policy (a policy issue to plaintiff’s employer that named 485 Seventh and Magnetic as additional insureds) is the primary policy. The question on this motion relies upon the language of the policies issued by plaintiff and defendant. Plaintiff’s policy (self- described as excess) issued to Stucco provides in pertinent part that: “8. Other Insurance a. This insurance is excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis. This condition will not apply to insurance specifically written as excess over this Coverage Part. When this insurance is excess, if no other insurer defends, we may undertake to do so, but we will be entitled to the insured's rights against all those other insurers” (NYSCEF Doc. No. 9 at 12). It also contains an endorsement entitled Excess Liability Primary and Non-Contributory Coverage which states that: “Section III – Conditions, 8. Other Insurance is amended and the following added: It is agreed that such insurance as is afforded by this policy for the benefit of an Additional Insured shall be primary to, and on a non-contributory basis with, any other excess insurance available to such Additional Insured, provided that you are specifically required by a written contract to provide such insurance and the contract is executed by you before any “event.” Coverage shall be limited to the extent required by the written contract. All other terms and conditions of this policy remain unchanged” (id. at 42). A plain reading of these provisions suggests that this insurance coverage, when provided to an additional insured such as 485 Seventh or Magnetic, is primary with respect to any other excess insurance available to an additional insured. The Court also concludes that the policy clearly provides excess coverage. The next issue, then, is whether defendant’s policy is primary or excess. Defendant’s policy (styled as a typical CGL policy) provides that: “4 Other Insurance. If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 4 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 4 5 of 6 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 a. Primary Insurance. This insurance is primary except when Paragraph b below applies. If this insurance is primary, our obligations are not affected unless an of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c below. b. Excess Insurance 1) This insurance is excess over . . . b) Any other primary insurance available to you covering liability for damages arising out of the premises or operations, or the products and completed operations, for which you have been added as an additional insured by attachment of an endorsement” (NYSCEF Doc. No. 10 at 49). The Court concludes the following: plaintiff’s policy is excess over defendant’s policy. That is, defendant has to pay before plaintiff has to pay. The fact is that defendant’s policy is not styled as an excess insurance policy and its efforts to transform its policy into providing excess coverage and plaintiff’s policy into a primary policy are unavailing. Defendant’s policy clearly states it is primary except where other primary insurance is available. That is what happened here—First Mercury stepped in and provided primary coverage. But there is no basis to find that plaintiff’s policy provides primary coverage. Plaintiff’s policy is clearly designed to be an excess policy and cannot be considered primary, as defendant argues, in order to jump ahead of defendant’s policy. As noted above, the fact that the underlying contract between Stucco and Magnetic may have required Stucco to procure more coverage is irrelevant to this decision (see Travelers Indemn. Co. v Am. and Foreign Ins. Co., 286 AD2d 626, 730 NYS2d 231 (Mem) [1st Dept 2001] [concluding that “In reaching this conclusion, the motion court properly declined to give evidentiary weight to the insurance procurement provisions of the subcontract between plaintiff general contractor and the injured party's employer, since it is the policy provisions that control and not the provisions of the subcontract]). 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 5 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 5 6 of 6 7 FILED: NEW YORK COUNTY CLERK 01/06/2023 01/12/2023 01:01 10:06 PM AM INDEX NO. 656604/2022 NYSCEF DOC. NO. 35 36 RECEIVED NYSCEF: 01/05/2023 01/12/2023 The Court cannot import the insurance procurement provisions of the underlying subcontract to plaintiff’s policy. It can only view the terms of the various polices and those policies yield the conclusion that plaintiff’s policy is excess over defendant’s policy. Accordingly, it is hereby ORDERED that plaintiff’s motion is granted and defendant’s cross-motion is denied; and it is further DECLARED that plaintiff’s policy is excess over defendant’s policy (Policy No. LCC- 000058) with respect to a pending action in the New York Supreme Court, Bronx County captioned Edwin Mena v 485 Seventh Avenue Associates LLC, et al., Index Number 20345/2017); and it is further ORDERED that the Clerk is directed to enter judgment accordingly in favor of plaintiff and against defendant along with costs and disbursements upon presentation of proper papers therefor. 1/5/2023 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 656604/2022 HUDSON EXCESS INSURANCE COMPANY vs. CERTAIN UNDERWRITERS AT Page 6 of 6 LLOYD'S LONDON SUBSCRIBING TO POLICY NO. LCC-000058 Motion No. 001 6 7 of 6 7