Preview
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
EXHIBIT I
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
From: Rick Futterman
Sent: 10.09.2020 20:44:26 CET
To: ClaimsNACasualty_corporatesolutions@swissre.com
Subject: First report of loss: Your insured Centennial elevator Industries Inc, Your policy#
IRG20049650,0 Claimant: Joseph Itara, claim# L19-5137
Attachments: Summons and complaint.pdf, C-3.pdf, Incident Report 81319.pdf, 65 Elev
stairs.pdf, Centennial Elev Contract.pdf, COI Centennial.pdf
Dear Sir/Madam
F and L Claims Service Inc is the TPA for Fireman’s Fund Insurance company.
Please allow this email to serve as a tender on behalf of Masaryk Towers Corporation( Masaryk) to First
Specialty Insurance Corp( First Specialty) under the CGL policy issued to Centennial Elevator Industries
Inc( Centennial) policy# IRG200496500 effective 12/1/18 to 4/1/20. On behalf Masaryk we seek
defense, indemnity and additional insured coverage under the above policy.
Attached find a Summons an Complaint that was on 3/19/20 which was the day before the courts closed
due to the Covid 19 pandemic. The suit was not however served until July 2, 2020. A review of the
complaint reveals the plaintiff Joseph Itara alleges on 8/13/19 he was walking up the exterior stairs on
the roof when he was caused to all as a result of a dangerous condition on the stairs. He seems damages
which exceed the jurisdictional limits of all lower court and his wife has a loss of services claim.
Please note my investigation into this accident reveals Mr. Itara is an elevator mechanic which is
employed by Centennial and specifically assigned to maintain the elevators at Masaryk Towers. Masaryk
Towers is a cooperative complex consisting of 6 separate buildings which each have their 3elevators. In
order to perform his work Mr. Itara travels to the roof of each building and uses the exterior stairs that
lead exclusively to the motor room for each elevator bank. On this day Mr. Itara claims that the 5th step
to the motor room broke causing him to fall through the stairs resulting in personal injuries. Please
note that our insured was made aware of the accident and security responded , completed the attached
accident report and called an ambulance which took him to the hospital . The photos attached to the
accident report were taken by Mr. Itara.. Your insured was made aware of the accident and submitted a
Workers Compensation claim to Everest National Insurance company
Please note my investigation further reveals that nobody at Masaryk Towers were made aware of any
complaints regarding the condition of the stairs to the motor room which are used exclusively by the
elevator Mechanics in the performance of their ongoing operations. My investigation also reveals that
another centennial elevator employees named Gary Granderson claims to have observed a the
condition of a rusted bracket to n this specific step prior to the loss and reported it to his supervisor and
management. However our insured has no record of this report ever being made.
My investigation further reveals that in 2001 Centennial entered into the attached Full Service Elevator
Maintenance contract following an elevator modernization. Centennial agreed to maintain all 16 of the
elevators in the Masaryk Towers Complex including the 3 elevators at 65/67 Columbia street New York,
NY. Pursuant to the terms of the contract:
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
“ the Contractor hereby agrees to the fullest extent permitted by law, to assume the entire
responsibility and liability for the defense of and to pay and indemnify the Owner, their agents and
employees against any loss, cost, expense, liability of damage and will hold each of them harmless
from and pay any cost, expense liability or damage( including without limitation, judgment, attorneys
fees, court costs and the cost of appellate proceedings) which Owner incurs because of sickness, injury
or death of any person on account of damage to or destruction of property, including loss of use
thereof, or any other claim arising out of, in connection with, or as a consequence of the performance
of the services or furnishing of the equipment and supplies and/or any act or omissions of the
Contractors… or anyone directly employed by the Contractor…”
The contractor was also agreed to maintain insurance to protect the Owner and Owners Agents from
any and all claims of whatsoever kind of nature for damage to property or for bodily injury, including
death to anyone whomsoever that may arise from the operations of the contractor. The contractor
agreed to purchase general liability insurance with a minimum of 1 Million dollars per occurrence and
excess limits of 4 Million dollars to follow form with the underlying policy. As such our insured was
provided with the attached certificate of insurance which indicates that Masaryk Towers corporation
and Metro Management Development Inc are additional insureds on the First Specialty Insurance Policy
cited above.
In light of the above, there is no question that Mr. Itara's accident arose out of and in connection or as a
consequence of his work for Centennial was performing for Masaryk towers. There is no question that
Centennial agreed to provide general liability insurance to Masaryk for any claims for bodily injury that
arose from the operation of the contractor. As such we demand that First Specialty acknowledge they
will defend, indemnify and extend additional insure coverage in this case.
Please have a claim set up and advise me the contact information for the adjuster assigned so I may
communicate with them directly.
If you have any questions, I can be reached at 6321 393 6206.
Rick Futterman
Claims Specialist, CPCU
F & L Claims Service Inc
560 Broad Hollow Road
Suite 202
Melville, NY 11747
Tel# 631 393 6210 ext11
Direct 631 393 6206
Fax# 631 393 6211
TPA for Allianz Global Corporate and Specialty
TPA for Interstate Fire and Casualty Company
TPA for Fireman's Fund Insurance Company
TPA for National Surety Corporation
========================================================================
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
From: Siegel, Matthew
Sent: 02.10.2020 15:49:27 CET
To: ClaimsNACasualty CorporateSolutions
Subject: FW: Rejection of Tender and Disclaimer of Coverage / Itara-v-Masaryk Towers /
Your Claim#: L19-5137; Our Claim#: 020201447364 / D/L: 8/13/19
Claim No: 0 14 73 4
Comments: Te d D$e eEEf Co $é
Document Type: Internal Communication
Activity Type: Put In File
Rush Case: N
Policy No:
Claims Team: TPA2
Matthew Siegel | Sr Claims Examiner
Carl Warren & Company, LLC
PO Box 2411, Tustin, CA 92781
Office:914-948-2205 | Fax: 866-254-4423
Because Quality and Integrity Matter... please EMAK my Supervisor about the service you received.
-----------------------------------
This e-mail and any files transmitted with it are intended solely for the use of the individual or entity to which they are addressed
and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any
action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received
this e-mail in error, please contact the sender and delete the material from your computer. Please note that any view or opinions
presented in this e-mail are solely those of the author and do not necessarily represent those of Carl Warren & Company,
LLC (CWC) and/or its subsidiaries. Finally, the recipient should check this e-mail and any attachments for the presence of viruses.
CWC accepts no liability for any damage caused by any virus transmitted by this e- mail. If this email has been sent by a
representative of Carl Warren to an attorney or law firm that is providing legal defense to a Carl Warren client, this email and any
attachments are intended to be confidential and privileged attorney-client communications.
From: Siegel, Matthew
Sent: Friday, October 2, 2020 10:18 AM
To: Rick Futterman
Cc: Naffziger, Kim ; Meriwether, Calvin ;
Irocco@centennialelevator.com; Jeff Millstone ; dgrafstein@psgins.com;
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
bnomberg@bbnrlaw.com
Subject: Rejection of Tender L19-
and Disclaimer of Coverage / Itara-v-Masaryk Towers / Your Claim#:
5137; Our Claim#: 020201447364 / D/L: 8/13/19
Mr. Rick Futterman
Claims Specialist, CPCU
F & L Claims Service Inc
560 Broad Hollow Road
Suite 202
Melville, NY 11747
RFutterman@fand!claimssgm
Claimant: Joseph Itara, et ano
Your Ins'd: Masaryk Towers Corp.
Your Claim#: L19-5137
Our Insured: Centennial Elevator Industries, Inc.
Our Claim#: 020201447364
D/L: 8/13/19
Loc. of Loss: 65 Columbia St., NYC 10002
Dear Rick,
SwissRe/FSIC acknowledges receipt on or about September 11, 2020 of F.&L Claim Service
Inc./Fireman's Fund Insurance Company's tender of its insured's, Masaryk Towers Corporation's
[hereinafter, "Masaryk"], defense and potential indemnification in the New York County
Supreme Court case, Joseph Itara and Tabetha Itara-v-Masaryk Towers Corporation d/b/a
Injury"
Masaryk Towers Management, et al., Index# 152948/2020, which apparent non-"Grave
matter solely revolves around your insured's failure as a landowner to maintain and keep its
premises in a reasonably safe condition upon allowing an outdoor, rooftop, metal, underside
step bracket to become corroded, broken and collapse beneath plaintiff Itara as he was
traversing said steps en route to the building's elevator motor room, rather than having arisen
out of the manner or method of my insured's, Centennial Elevator Industries Inc.'s (hereinafter,
"Centennial"), elevator maintenance work pursuant to the terms of the undated proffered
"Vertical Transportation Maintenance Full Coverage Contract and Specifications (hereinafter,
the "Contract"). Accordingly, Centennial was under no duty to discover and remediate such
defective, non-obvious and dangerous condition of Masaryk's premises, let alone bear liability
therefor, to otherwise trigger any obligation on the part of Centennial to indemnify Masaryk for
its sole negligence under the holdharmless agreement between the parties, or to otherwise
serve as any legal inducement or obligation on the part of SwissRe/FSIC, under the
Payments," Contract"
"Supplementary "Insured or additional-insured provisions of its
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
Commercial General Liability Policy, to defend and/or potentially indemnify Masaryk in the
above-entitled action!
COVERAGE,"
Pursuant to the terms of the Contract between the parties, at "4.02 INSURANCE it
is provided that:
"The Contractor |iereby agrees, to the fullest extent permitted by law, to assume the entire
responsibility and liability for the defense of and to pay and indsmñif y the Owner, their
agents and employees against any loss, cost, expense, liability of dãmage and will hold each
of them harmless from and pay any cost, expense liability or damage (including without
limitation, judgment, attorneys fees, court costs and the cost of appê|lüte proceedings) which
Owner incurs because of sickness, injury or death of any person or on account of damGgs to or
destruction of property, including loss of use thereof, or any other claim arising out of, in
connection with, or as a consequence of the performance of the services or furnishing of the
equipment and supplies and/or any act or omissions of the Contractor . . . or anyone directly
employed by the Contractorfor whom it may be liable as it relates to the scope of this
contract.
. . .
The Contractor agrees to maintain such insurance as will fully protect the Contrüctûr, Agent
and the Owner of the building . . . from any and all . . . claims of whatsoever kind of [sic.]
nature for damage to property or for bodily injury, including death to ãñycñé whatsoever,
that may arise from the operations of the Contractor.
. . .
Prior to the comméñcement of operations, Contractor will purchase and maintain the
fu||üü|ñg m!r!r==m insurance as will protect it, the Owner and the owner's agents from any
claim which may arise out of a result of Contractor[']s operations under this service contract
. . . :
[which, as you note in your tender demand letter, included Commercial General Liability
basis"
Insurance on an "occurrence with minimum limits of $1 million/occurrence and $2
million in the aggregate and excess limits of $4 million per occurrence and in the aggregate,
{Centennial},"
or the "usual limits carried by the contractor w|iici1éver "shall be greater."]
REJECTION OF TENDER AND DISCLAIMER OF COVERAGE
I.
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
SwissRe/FSIC's Commercial General l.iability Policy# IRG 2004965 00, issued to Centennial,
effective 12/1/18-4/1/20 (Form CG 00 0112/07, ff.), provides, in pertinent part, as follows:
. . .
2. Exclusions
This insurance does not apply to:
. Contractual Liability
injury" damage"
"Bodily or "property for
which the insured is obligated to pay damages
by reason of the assumption of liability
in a contract or agreement. This exclusion
does not apply to liability for damages:
(1) That the insured would have in the absence
of the contract or agreement; or
(2) Assumed in a contract or agreement
that is an "insured contract", provided
injury" damage"
the "bodily or "property
occurs subsequent to the execution
of the contract or agreement. Solely
for the purposes of liability assumed
in an "insured contract", reasonable attorney
fees and necessary litigation expenses
incurred by or for a party other
than an insured are deemed to be damages
injury"
because of "bodily or
"property damage", provided:
(a) Liability to such party for, or for the
cost of, that party's defense has also
been assumed in the same "insured
contract"; and
(b) Such attorney fees and litigation
expenses are for defense of that
party against a civil or alternative
dispute resolution proceeding in
which damages to which this insurance
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
applies are alleged.
. . .
. . .
e. Employer's Liability
injury"
"Bodily to:
"employee"
(1) An of the insured arising
out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the
conduct of the insured's business;
or
(2) The spouse, child, parent, brother or
"employee"
sister of that as a consequence
of Paragraph (1) above.
This exclusion applies whether the insured
may be liable as an employer or in any other
capacity and to any obligation to share
damages with or repay someone else who
must pay damages because of the injury.
This exclusion does not apply to liability assumed
by the insured under an "insured
contract".
contract" agreement"
Under the policy, an "insured includes "an elevator maintenance and
"[t]hat part of any other contract or agreemeñt pertaining to your business . . . under which you
injury' damage'
assume the tort
liability of another party to pay for 'bodily or 'property to a
organization." liability"
third person or "[T]ort is further defined as a "liability that would be
agreement."
imposed by law in the absence of any contract or
Here, it is evident that the general nature of Centennial's operations, per its Contract with
Masaryk, was to make repairs and replacements incidental to the normal operation of
Masaryk's elevator machinery, not maintain, repair or replace the faulty, defective and
corroded outdoor, metal rooftop stairs in question, for which Masaryk is sought to be cast in
liability. ACCORDINGLY, THERE IS NOTHING ABOUT THE HOLDHARMLESS AGREEMENT, ABOVE,
WHICH OTHERWISE SERVES AS A LEGAL INDUCEMENT OR OBLIGATION FOR CENTENNIAL, AND,
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
HENCE, SWISSRE/FSIC, TO PRESENTLY AGREE TO ASSUME INDEMNITEE MASARYK'S DEFENSE
AND POTENTIAL INDEMNIFICATION , since plaintiff's accident was not caused by, and did not
arise out of, in connection with, or as a consequence of Centennial's performance of its services
or furnishing of equipment and supplies and/or any act or omission on its part or that of anyone
employed it as it relates to the scope the contract -- beyond Itara's
directly by of plaintiff
presence having sheerly furnished the occasion for your insured's defectively-maintained stairs
to collapse beneath him! Moreover, while, generally, the absence of negligence, by itself, is
of"
insufficient to establish that an accident did not "arise out an insured's operations, pursuant
to New York General Obligations Law § 5-322.1 it is against public policy, even in the face of a
properly-worded holdharmless agreement, for an indemñitor to indemnify its indemnitee for
such indemnitee's negligence - let alone its sole as in the instant even had
negligence, matter,
there been a direct connection between Centennial's work and the subject accident -- the
defective staircase not having been a part of or inherent in or arising out of Centennial's
elevator maintenance work, but, rather, merely having been the situs of such accident.
Additionally, while you vaguely lay claim that our insured's foreman had prior notice of the
corroded condition of the stairs, said defective condition was not caused by Centennial's or
plaintiff Itara's methods of performing the elevator maintenance work, nor was Centennial
engaged for the specific purpose of repairing such defect, to otherwise cast it in liability for
negligence! Moreover, the conclusory and inadmissible hearsay evidence proffered by
F&L/Fireman's, in and of itself, is woefully inadequate to establish that Centennial was on notice
the non-obvious -- or even latent -- defect Marasyk's and thus failed to provide
of of staircase,
plaintiff, as its employee, with a safe place to work.
II.
Secondly, SwissRe/FSIC's Commercial General Liability Policy further provides, in pertinent part,
at SUPPLEMENTARY PAYMENTS - COVERAGES A AND B
. . .
"suit"
2. If we defend an insured against a and an
indemnitee of the insured is also named as a
party to the "suit", we will defend that indemnitee
if all of the following conditions are met:
"suit"
a. The against the indemnitee seeks
damagesfor which the insured has assumed
the liability of the indemnitee in a
contract or agreement that is an "insured
contract";
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
b. This insurance applies to such liability assumed
by the insured;
c. The obligation to defend, or the cost of the
defense of, that indemnitee, has also been
assumed by the insured in the same "insured
contract";
"suit"
d. The allegations in the and the information
"occurrence"
we know about the
are such that no conflict appears to exist
between the interests of the insured and
the interests of the indemnitee;
e. The indemnitee and the insured ask us to
conduct and control the defense of that indemnitee
"suit"
against such and agree
that we can assign the same counsel to defend
the insured and the indemnitee; and
f. The indemnitee:
(1) Agrees in writing to:
(a) Cooperate with us in the investigation,
settlement or defense of the
"suit";
(b) Immediately send us copies of any
demands, notices, summonses or
legal papers received in connection
with the "suit";
(c) Notify any other insurer whose coverage
is available to the indemnitee;
and
(d) Cooperate with us with respect to
coordinating other applicable insurance
available to the indemnitee;
and
(2) Provides us with written authorization
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021
to:
(a) Obtain records and other information
related to the "suit"; and
(b) Conduct and control the defense of
the indemnitee in such "suit".
attorneys'
So long as the above conditions are met,
fees incurred by us in the defense of
that indemnitee, necessary litigation expenses
incurred by us and necessary litigation expenses
incurred by the indemnitee at our request
will be paid as Supplementary Payments. Notwithstanding
the provisions of Paragraph
2.b.(2) of Section I - Coverage A - Bodily Injury
And Property Damage Liability, such payments
will not be deemed to be damages for "bodily
injury" damage"
and "property and will not reduce
the limits of insurance.
However, in view of Centennial not being a named defendant in the underlying personal injury
lawsuit, and the foregoing analysis revealing that a salient conflict exists between the interests
of the parties in their respective capacities as indemnitee and indemnitor under the instant
holdharmless agreement, SwissRe/FSIC DISCLAIMS ANY OBLIGATION PURSUANT TO THE
PAYMENTS" INSURER-
ABOVE "SUPPLEMENTARY PROVISION OF THE POLICY TO PROVIDE AN
SPONSORED DEFENSE TO MASARYK AS CENTENNIAL'S INDEMNITEE.
Ill.
Moreover, even assuming that Centennial was obligated to "purchase and maintain . . .
insurance as will protect it, [Masaryk] and [Masaryk's] agents from any claim which may arise
.,"
out of a result of [Centennial's] operations under [the Contract] . . SwissRe/FSIC also rejects
F.&L.'s/Fireman's Fund's tender on behalf of Masaryk, in its capacity as a putative additional
insured under SwissRe/FSIC's Commercial General Liability Policy, and , accordingly, DISCLAIMS
-- AND "ITS AGENTS" -- on
ANY DUTY TO DEFEND AND/OR INDEMNIFY MASARYK a primary and
or other basis -- REGARDING THE INSTANT PREMISES WHICH
non-contributing, any ACCIDENT,
WAS NOT "CAUSED, IN WHOLE OR IN PART, BY [CENTENNIAL'S] ACTS OR OMISSIONS; OR [T]HE
BEHALF"
ACTS OR OMISSIONS OF THOSE ACTING ON [ITS] as otherwise required by the blanket
additional-insured endorsement appended to SwissRe/FSIC's CG 2010 -
policy (See, (04/13)
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 84
Preview
FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 EXHIBIT I FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 From: Rick Futterman Sent: 10.09.2020 20:44:26 CET To: ClaimsNACasualty_corporatesolutions@swissre.com Subject: First report of loss: Your insured Centennial elevator Industries Inc, Your policy# IRG20049650,0 Claimant: Joseph Itara, claim# L19-5137 Attachments: Summons and complaint.pdf, C-3.pdf, Incident Report 81319.pdf, 65 Elev stairs.pdf, Centennial Elev Contract.pdf, COI Centennial.pdf Dear Sir/Madam F and L Claims Service Inc is the TPA for Fireman’s Fund Insurance company. Please allow this email to serve as a tender on behalf of Masaryk Towers Corporation( Masaryk) to First Specialty Insurance Corp( First Specialty) under the CGL policy issued to Centennial Elevator Industries Inc( Centennial) policy# IRG200496500 effective 12/1/18 to 4/1/20. On behalf Masaryk we seek defense, indemnity and additional insured coverage under the above policy. Attached find a Summons an Complaint that was on 3/19/20 which was the day before the courts closed due to the Covid 19 pandemic. The suit was not however served until July 2, 2020. A review of the complaint reveals the plaintiff Joseph Itara alleges on 8/13/19 he was walking up the exterior stairs on the roof when he was caused to all as a result of a dangerous condition on the stairs. He seems damages which exceed the jurisdictional limits of all lower court and his wife has a loss of services claim. Please note my investigation into this accident reveals Mr. Itara is an elevator mechanic which is employed by Centennial and specifically assigned to maintain the elevators at Masaryk Towers. Masaryk Towers is a cooperative complex consisting of 6 separate buildings which each have their 3elevators. In order to perform his work Mr. Itara travels to the roof of each building and uses the exterior stairs that lead exclusively to the motor room for each elevator bank. On this day Mr. Itara claims that the 5th step to the motor room broke causing him to fall through the stairs resulting in personal injuries. Please note that our insured was made aware of the accident and security responded , completed the attached accident report and called an ambulance which took him to the hospital . The photos attached to the accident report were taken by Mr. Itara.. Your insured was made aware of the accident and submitted a Workers Compensation claim to Everest National Insurance company Please note my investigation further reveals that nobody at Masaryk Towers were made aware of any complaints regarding the condition of the stairs to the motor room which are used exclusively by the elevator Mechanics in the performance of their ongoing operations. My investigation also reveals that another centennial elevator employees named Gary Granderson claims to have observed a the condition of a rusted bracket to n this specific step prior to the loss and reported it to his supervisor and management. However our insured has no record of this report ever being made. My investigation further reveals that in 2001 Centennial entered into the attached Full Service Elevator Maintenance contract following an elevator modernization. Centennial agreed to maintain all 16 of the elevators in the Masaryk Towers Complex including the 3 elevators at 65/67 Columbia street New York, NY. Pursuant to the terms of the contract: FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 “ the Contractor hereby agrees to the fullest extent permitted by law, to assume the entire responsibility and liability for the defense of and to pay and indemnify the Owner, their agents and employees against any loss, cost, expense, liability of damage and will hold each of them harmless from and pay any cost, expense liability or damage( including without limitation, judgment, attorneys fees, court costs and the cost of appellate proceedings) which Owner incurs because of sickness, injury or death of any person on account of damage to or destruction of property, including loss of use thereof, or any other claim arising out of, in connection with, or as a consequence of the performance of the services or furnishing of the equipment and supplies and/or any act or omissions of the Contractors… or anyone directly employed by the Contractor…” The contractor was also agreed to maintain insurance to protect the Owner and Owners Agents from any and all claims of whatsoever kind of nature for damage to property or for bodily injury, including death to anyone whomsoever that may arise from the operations of the contractor. The contractor agreed to purchase general liability insurance with a minimum of 1 Million dollars per occurrence and excess limits of 4 Million dollars to follow form with the underlying policy. As such our insured was provided with the attached certificate of insurance which indicates that Masaryk Towers corporation and Metro Management Development Inc are additional insureds on the First Specialty Insurance Policy cited above. In light of the above, there is no question that Mr. Itara's accident arose out of and in connection or as a consequence of his work for Centennial was performing for Masaryk towers. There is no question that Centennial agreed to provide general liability insurance to Masaryk for any claims for bodily injury that arose from the operation of the contractor. As such we demand that First Specialty acknowledge they will defend, indemnify and extend additional insure coverage in this case. Please have a claim set up and advise me the contact information for the adjuster assigned so I may communicate with them directly. If you have any questions, I can be reached at 6321 393 6206. Rick Futterman Claims Specialist, CPCU F & L Claims Service Inc 560 Broad Hollow Road Suite 202 Melville, NY 11747 Tel# 631 393 6210 ext11 Direct 631 393 6206 Fax# 631 393 6211 TPA for Allianz Global Corporate and Specialty TPA for Interstate Fire and Casualty Company TPA for Fireman's Fund Insurance Company TPA for National Surety Corporation ======================================================================== FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 From: Siegel, Matthew Sent: 02.10.2020 15:49:27 CET To: ClaimsNACasualty CorporateSolutions Subject: FW: Rejection of Tender and Disclaimer of Coverage / Itara-v-Masaryk Towers / Your Claim#: L19-5137; Our Claim#: 020201447364 / D/L: 8/13/19 Claim No: 0 14 73 4 Comments: Te d D$e eEEf Co $é Document Type: Internal Communication Activity Type: Put In File Rush Case: N Policy No: Claims Team: TPA2 Matthew Siegel | Sr Claims Examiner Carl Warren & Company, LLC PO Box 2411, Tustin, CA 92781 Office:914-948-2205 | Fax: 866-254-4423 Because Quality and Integrity Matter... please EMAK my Supervisor about the service you received. ----------------------------------- This e-mail and any files transmitted with it are intended solely for the use of the individual or entity to which they are addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this e-mail in error, please contact the sender and delete the material from your computer. Please note that any view or opinions presented in this e-mail are solely those of the author and do not necessarily represent those of Carl Warren & Company, LLC (CWC) and/or its subsidiaries. Finally, the recipient should check this e-mail and any attachments for the presence of viruses. CWC accepts no liability for any damage caused by any virus transmitted by this e- mail. If this email has been sent by a representative of Carl Warren to an attorney or law firm that is providing legal defense to a Carl Warren client, this email and any attachments are intended to be confidential and privileged attorney-client communications. From: Siegel, Matthew Sent: Friday, October 2, 2020 10:18 AM To: Rick Futterman Cc: Naffziger, Kim ; Meriwether, Calvin ; Irocco@centennialelevator.com; Jeff Millstone ; dgrafstein@psgins.com; FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 bnomberg@bbnrlaw.com Subject: Rejection of Tender L19- and Disclaimer of Coverage / Itara-v-Masaryk Towers / Your Claim#: 5137; Our Claim#: 020201447364 / D/L: 8/13/19 Mr. Rick Futterman Claims Specialist, CPCU F & L Claims Service Inc 560 Broad Hollow Road Suite 202 Melville, NY 11747 RFutterman@fand!claimssgm Claimant: Joseph Itara, et ano Your Ins'd: Masaryk Towers Corp. Your Claim#: L19-5137 Our Insured: Centennial Elevator Industries, Inc. Our Claim#: 020201447364 D/L: 8/13/19 Loc. of Loss: 65 Columbia St., NYC 10002 Dear Rick, SwissRe/FSIC acknowledges receipt on or about September 11, 2020 of F.&L Claim Service Inc./Fireman's Fund Insurance Company's tender of its insured's, Masaryk Towers Corporation's [hereinafter, "Masaryk"], defense and potential indemnification in the New York County Supreme Court case, Joseph Itara and Tabetha Itara-v-Masaryk Towers Corporation d/b/a Injury" Masaryk Towers Management, et al., Index# 152948/2020, which apparent non-"Grave matter solely revolves around your insured's failure as a landowner to maintain and keep its premises in a reasonably safe condition upon allowing an outdoor, rooftop, metal, underside step bracket to become corroded, broken and collapse beneath plaintiff Itara as he was traversing said steps en route to the building's elevator motor room, rather than having arisen out of the manner or method of my insured's, Centennial Elevator Industries Inc.'s (hereinafter, "Centennial"), elevator maintenance work pursuant to the terms of the undated proffered "Vertical Transportation Maintenance Full Coverage Contract and Specifications (hereinafter, the "Contract"). Accordingly, Centennial was under no duty to discover and remediate such defective, non-obvious and dangerous condition of Masaryk's premises, let alone bear liability therefor, to otherwise trigger any obligation on the part of Centennial to indemnify Masaryk for its sole negligence under the holdharmless agreement between the parties, or to otherwise serve as any legal inducement or obligation on the part of SwissRe/FSIC, under the Payments," Contract" "Supplementary "Insured or additional-insured provisions of its FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 Commercial General Liability Policy, to defend and/or potentially indemnify Masaryk in the above-entitled action! COVERAGE," Pursuant to the terms of the Contract between the parties, at "4.02 INSURANCE it is provided that: "The Contractor |iereby agrees, to the fullest extent permitted by law, to assume the entire responsibility and liability for the defense of and to pay and indsmñif y the Owner, their agents and employees against any loss, cost, expense, liability of dãmage and will hold each of them harmless from and pay any cost, expense liability or damage (including without limitation, judgment, attorneys fees, court costs and the cost of appê|lüte proceedings) which Owner incurs because of sickness, injury or death of any person or on account of damGgs to or destruction of property, including loss of use thereof, or any other claim arising out of, in connection with, or as a consequence of the performance of the services or furnishing of the equipment and supplies and/or any act or omissions of the Contractor . . . or anyone directly employed by the Contractorfor whom it may be liable as it relates to the scope of this contract. . . . The Contractor agrees to maintain such insurance as will fully protect the Contrüctûr, Agent and the Owner of the building . . . from any and all . . . claims of whatsoever kind of [sic.] nature for damage to property or for bodily injury, including death to ãñycñé whatsoever, that may arise from the operations of the Contractor. . . . Prior to the comméñcement of operations, Contractor will purchase and maintain the fu||üü|ñg m!r!r==m insurance as will protect it, the Owner and the owner's agents from any claim which may arise out of a result of Contractor[']s operations under this service contract . . . : [which, as you note in your tender demand letter, included Commercial General Liability basis" Insurance on an "occurrence with minimum limits of $1 million/occurrence and $2 million in the aggregate and excess limits of $4 million per occurrence and in the aggregate, {Centennial}," or the "usual limits carried by the contractor w|iici1éver "shall be greater."] REJECTION OF TENDER AND DISCLAIMER OF COVERAGE I. FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 SwissRe/FSIC's Commercial General l.iability Policy# IRG 2004965 00, issued to Centennial, effective 12/1/18-4/1/20 (Form CG 00 0112/07, ff.), provides, in pertinent part, as follows: . . . 2. Exclusions This insurance does not apply to: . Contractual Liability injury" damage" "Bodily or "property for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) That the insured would have in the absence of the contract or agreement; or (2) Assumed in a contract or agreement that is an "insured contract", provided injury" damage" the "bodily or "property occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an "insured contract", reasonable attorney fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages injury" because of "bodily or "property damage", provided: (a) Liability to such party for, or for the cost of, that party's defense has also been assumed in the same "insured contract"; and (b) Such attorney fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 applies are alleged. . . . . . . e. Employer's Liability injury" "Bodily to: "employee" (1) An of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured's business; or (2) The spouse, child, parent, brother or "employee" sister of that as a consequence of Paragraph (1) above. This exclusion applies whether the insured may be liable as an employer or in any other capacity and to any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to liability assumed by the insured under an "insured contract". contract" agreement" Under the policy, an "insured includes "an elevator maintenance and "[t]hat part of any other contract or agreemeñt pertaining to your business . . . under which you injury' damage' assume the tort liability of another party to pay for 'bodily or 'property to a organization." liability" third person or "[T]ort is further defined as a "liability that would be agreement." imposed by law in the absence of any contract or Here, it is evident that the general nature of Centennial's operations, per its Contract with Masaryk, was to make repairs and replacements incidental to the normal operation of Masaryk's elevator machinery, not maintain, repair or replace the faulty, defective and corroded outdoor, metal rooftop stairs in question, for which Masaryk is sought to be cast in liability. ACCORDINGLY, THERE IS NOTHING ABOUT THE HOLDHARMLESS AGREEMENT, ABOVE, WHICH OTHERWISE SERVES AS A LEGAL INDUCEMENT OR OBLIGATION FOR CENTENNIAL, AND, FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 HENCE, SWISSRE/FSIC, TO PRESENTLY AGREE TO ASSUME INDEMNITEE MASARYK'S DEFENSE AND POTENTIAL INDEMNIFICATION , since plaintiff's accident was not caused by, and did not arise out of, in connection with, or as a consequence of Centennial's performance of its services or furnishing of equipment and supplies and/or any act or omission on its part or that of anyone employed it as it relates to the scope the contract -- beyond Itara's directly by of plaintiff presence having sheerly furnished the occasion for your insured's defectively-maintained stairs to collapse beneath him! Moreover, while, generally, the absence of negligence, by itself, is of" insufficient to establish that an accident did not "arise out an insured's operations, pursuant to New York General Obligations Law § 5-322.1 it is against public policy, even in the face of a properly-worded holdharmless agreement, for an indemñitor to indemnify its indemnitee for such indemnitee's negligence - let alone its sole as in the instant even had negligence, matter, there been a direct connection between Centennial's work and the subject accident -- the defective staircase not having been a part of or inherent in or arising out of Centennial's elevator maintenance work, but, rather, merely having been the situs of such accident. Additionally, while you vaguely lay claim that our insured's foreman had prior notice of the corroded condition of the stairs, said defective condition was not caused by Centennial's or plaintiff Itara's methods of performing the elevator maintenance work, nor was Centennial engaged for the specific purpose of repairing such defect, to otherwise cast it in liability for negligence! Moreover, the conclusory and inadmissible hearsay evidence proffered by F&L/Fireman's, in and of itself, is woefully inadequate to establish that Centennial was on notice the non-obvious -- or even latent -- defect Marasyk's and thus failed to provide of of staircase, plaintiff, as its employee, with a safe place to work. II. Secondly, SwissRe/FSIC's Commercial General Liability Policy further provides, in pertinent part, at SUPPLEMENTARY PAYMENTS - COVERAGES A AND B . . . "suit" 2. If we defend an insured against a and an indemnitee of the insured is also named as a party to the "suit", we will defend that indemnitee if all of the following conditions are met: "suit" a. The against the indemnitee seeks damagesfor which the insured has assumed the liability of the indemnitee in a contract or agreement that is an "insured contract"; FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 b. This insurance applies to such liability assumed by the insured; c. The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in the same "insured contract"; "suit" d. The allegations in the and the information "occurrence" we know about the are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee; e. The indemnitee and the insured ask us to conduct and control the defense of that indemnitee "suit" against such and agree that we can assign the same counsel to defend the insured and the indemnitee; and f. The indemnitee: (1) Agrees in writing to: (a) Cooperate with us in the investigation, settlement or defense of the "suit"; (b) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the "suit"; (c) Notify any other insurer whose coverage is available to the indemnitee; and (d) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and (2) Provides us with written authorization FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 09/13/2021 to: (a) Obtain records and other information related to the "suit"; and (b) Conduct and control the defense of the indemnitee in such "suit". attorneys' So long as the above conditions are met, fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as Supplementary Payments. Notwithstanding the provisions of Paragraph 2.b.(2) of Section I - Coverage A - Bodily Injury And Property Damage Liability, such payments will not be deemed to be damages for "bodily injury" damage" and "property and will not reduce the limits of insurance. However, in view of Centennial not being a named defendant in the underlying personal injury lawsuit, and the foregoing analysis revealing that a salient conflict exists between the interests of the parties in their respective capacities as indemnitee and indemnitor under the instant holdharmless agreement, SwissRe/FSIC DISCLAIMS ANY OBLIGATION PURSUANT TO THE PAYMENTS" INSURER- ABOVE "SUPPLEMENTARY PROVISION OF THE POLICY TO PROVIDE AN SPONSORED DEFENSE TO MASARYK AS CENTENNIAL'S INDEMNITEE. Ill. Moreover, even assuming that Centennial was obligated to "purchase and maintain . . . insurance as will protect it, [Masaryk] and [Masaryk's] agents from any claim which may arise .," out of a result of [Centennial's] operations under [the Contract] . . SwissRe/FSIC also rejects F.&L.'s/Fireman's Fund's tender on behalf of Masaryk, in its capacity as a putative additional insured under SwissRe/FSIC's Commercial General Liability Policy, and , accordingly, DISCLAIMS -- AND "ITS AGENTS" -- on ANY DUTY TO DEFEND AND/OR INDEMNIFY MASARYK a primary and or other basis -- REGARDING THE INSTANT PREMISES WHICH non-contributing, any ACCIDENT, WAS NOT "CAUSED, IN WHOLE OR IN PART, BY [CENTENNIAL'S] ACTS OR OMISSIONS; OR [T]HE BEHALF" ACTS OR OMISSIONS OF THOSE ACTING ON [ITS] as otherwise required by the blanket additional-insured endorsement appended to SwissRe/FSIC's CG 2010 - policy (See, (04/13) FILED: NEW YORK COUNTY CLERK 09/13/2021 03:16 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 84