CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. V. UNITED CAPITOL INSURANCE COMPANY AND INTERNATIONAL DISMANTLING & MACHINERY CORP.,

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: IAS PART 3

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CONSOLIDATED EDISON COMPANY OF NEW

YORK, INC.,

Plaintiff,

                                        Index No.: 124522/94

                                        Seq. No.: 001

-against-

UNITED CAPITOL INSURANCE COMPANY and

INTERNATIONAL DISMANTLING & MACHINERY

CORP.,

Defendants.

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BARRY A. COZIER, J.

Defendant, United Capitol Insurance Company ("United Capitol"), moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and a declaring that it has no duty to defend or indemnify plaintiff, Consolidated Edison Company of New York, Inc. ("Con Edison").

Factual Allegations

The complaint alleges the following facts: On or about August 24, 1990, Con Edison, and defendant International Dismantling & Machinery Corp. ( the "Contractor"), entered into an agreement (Con Edison Purchase Order No. 018768) whereby the Contractor agreed to perform certain work and to render certain services for Con Edison in and around the Arthur Kill Generating Station in Staten Island, New York.

The work to be performed by the Contractor pursuant to the agreement was to be done in accordance with the requirements of "Standard Terms and Conditions of Construction Contracts" dated October 7, 1988, and the "Invitation to Bid CC90-062" dated June 19, 1990, along with related "Supplementary" letters. The Standard Terms and Conditions of Construction Contracts included an "indemnification" clause whereby the Contractor agreed to "defend, indemnify and save Con Edison..." from all "claims, damage, loss and liability..." for injury or death to persons, or damage to property, resulting from the performance of the Contractor's work. The Contracts also included a clause requiring the Contractor to procure and maintain various insurance until the completion of the work. Defendant United Capitol is the Contractor's insurer.

On or before November 12, 1990, the Contractor was performing services pursuant to the agreement at the Arthur Kill Generating Station, exercising exclusive supervision over the work there, when Paul V. Randazzo sustained personal injuries as a result of the alleged acts or omissions of Con Edison. As a result, Randazzo commenced an action ( the "underlying action") against Con Edison, seeking damages against it upon the grounds that it was negligent.

Prior to November 12, 1990, United Capitol issued to Con Edison a comprehensive general liability Certificate of Insurance dated March 14, 1991, certifying that the Contractor was insured by United Capitol, effective from June 8, 1990 through June 8, 1991. Con Edison is named and identified as an "additional insured" in the certificate. The certificate was in full force in effect at the time Randazzo allegedly sustained injuries. Con Edison duly notified United Capitol of the occurrence of November 12, 1990 and the underlying action, and thereby requested that United Capitol defend Con Edison in the action. Con Edison also requested that United Capitol indemnify it for all sums which it may be liable to pay as damages in the underlying action.

The complaint alleges that United Capitol has neglected, failed and refused to defend and indemnify Con Edison in the underlying action, thereby breaching the provisions of the policy of comprehensive general liability insurance evidenced by the Certificate of Insurance. The complaint further alleges that as a result of this failure, Con Edison has incurred, and will incur, legal costs and expenses, and may be held liable in damages to Randazzo in the underlying action. Plaintiff seeks a judgment declaring that United Capitol is bound to defend and indemnify Con Edison in the underlying action. In its answer, United Capitol denies the material allegations of the complaint.

In support of the motion, United Capitol contends that it has no duty to defend or indemnify Con Edison in the underlying action because Con Edison is neither a "named insured" nor an "additional insured" under its policy. United Capitol maintains that the Certificate of Insurance issued to defendant International Dismantling & Machinery Corp. ("IDM") by the corporation's own insurance broker could not confer upon Con Edison any rights as an "additional insured" under United Capitol's policy. United Capitol further contends that only a separate endorsement could grant Con Edison such rights. Moreover, United Capitol claims that no such endorsement was ever issued. Con Edison argues that it was properly made an "additional insured" under the Certificate of Insurance.

Discussion

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325 (1986). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 (1979). A failure to make such a prima facie showing requires a denial of the summary judgment motion, regardless of the sufficiency of the opposing papers. Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez, supra at 324; Zuckerman, supra, at 562. Although the papers submitted in support of and in opposition to a summary judgment motion are examined in a light most favorable to the party opposing the motion, mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Martin v. Briggs, 235 A.D.2d 192, 196 (1st Dept 1997) Zuckerman, supra. Upon the completion of the court's examination of all the documents submitted in connection with a summary judgment motion, the motion must be denied if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978).

Preliminarily, it is well-settled that an insurer's duty to defend is broader than the duty to indemnify. An insurer has a duty to defend its insured where the allegations of the complaint in the underlying action or the known facts give rise to a reasonable possibility of coverage. However, the insurer's duty to indemnify requires a determination that the insured is liable for a loss covered by the policy. See, Manning v. Atlas Transit Mix Corp., __A.D.2d__ 679 N.Y.S.2d 69 (2^nd Dept. 1998). In addition, it is also well established that a certificate of insurance naming a party as an "additional insured" constitutes evidence of an insurance company's agreement to insure the party but is neither conclusive proof of the existence of such a contract nor, in and of itself, a contract to insure the party. Morrison Knudsen Co., Inc. v. Continental Casualty Co., Inc.,181 A.D.2d 500 (1^st Dept. 1992);Monette Armstrong v. Ogden Allied Facilities Mgmt. Corp., 234 A.D.2d 235, 236 (1^st Dept. 1996).

In the case at bar, the documentary evidence submitted by the parties indicates that the Contractor appears as the "named insured" in a "Named Insured" endorsement issued by United Capitol. Con Edison does not appear on the Named Insured endorsement but does appear as an "additional insured" in the Certificate of Insurance. The certificate also lists United Capitol as one of the companies "affording coverage" for the policy period at issue, and further lists the Contractor as the "insured." In addition, such certificate contains a disclaimer clause to the effect that it confers "no rights upon the certificate holder (i.e. Con Edison) and that it does not "amend, extend or alter" the coverage afforded by the policies issued by the various insurances companies listed, including United Capitol. Further, the certificate indicates that has been issued as a "matter of information only..."

In light of the equivocal nature of the foregoing evidence and the prevailing authority, the Court is constrained to deny defendant's motion for summary judgment dismissing the complaint and declaring that it has no duty to defend or indemnify Con Edison. Bucon, Inc. v. Pennsylvania Mfg. Assoc. Ins. Co., 151 A.D.2d 207 (3^rd Dept. 1989) (granting declaratory judgment in favor of plaintiff contractor against insurer who disclaimed duty to defend and indemnify because issue of fact existed as to whether insurer agreed to provide plaintiff contractor coverage as additional insured under certificate of insurance policy of insurance issued to subcontractor, notwithstanding disclaimer language in certificate); Lenox Realty Inc. v. Excelsior Ins. Co., 679 N.Y.S.2d 749 (3^rd Dept. 1998). The Court finds that material issues of fact exist as to whether United Capitol agreed to provide Con Edison coverage as an additional named insured pursuant to the Certificate of Insurance.

Accordingly, it is

ORDERED that United Capitol's motion for an order granting summary judgment dismissing the complaint and declaring that it has no duty to defend or indemnify plaintiff, is denied.

This constitutes the decision and order of the Court.

Dated: April 7, 1999

ENTER:

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J.S.C.