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ROSATO v. KARL KOCH ERECTING CO.

July 20, 1994

JOHN ROSATO, et ano, Plaintiffs,
v.
KARL KOCH ERECTING CO., INC., Third-party plaintiff, and defendant, v. THUNDERBIRD CONSTRUCTORS, INC., Third-party defendant, THUNDERBIRD CONSTRUCTORS, INC., Fourth-party plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY, et ano, Fourth-party defendant



The opinion of the court was delivered by: MARILYN DOLAN GO

 GO, United States Magistrate Judge:

 This is a diversity action to recover damages for work-related injuries. Although the primary claim is one for personal injuries, virtually all of the pretrial activity, including the instant motion for summary judgment, has revolved around disputes in two third-party actions over which insurance carrier will ultimately be responsible for payment of plaintiff's damages (if any) and the costs of litigation. Pursuant to 28 U.S.C. ยง 636(c), the third parties Karl Koch Erecting Co. and Thunderbird Constructors, Inc. have consented to have this motion determined by me.

 BACKGROUND

 There are no material facts in dispute since the parties agree on the existence and contents of the two insurance policies and the contracts giving rise to this third party action.

 Karl Koch Erecting Co., Inc. ("Koch" or the "Contractor"), the defendant and third-party plaintiff, is a general contractor. Koch entered into a contract with the New York State Department of Transportation (the "Owner") dated March 20, 1989 (the "Construction Contract") to perform certain reconstruction work on the West 207th Street bridge. Koch later subcontracted some of the work to Thunderbird Constructors, Inc. ("Thunderbird" or the "Subcontractor"), the third-party defendant, pursuant to a contract dated May 25, 1990 (the "Subcontract").

  Section 7 of the Subcontract specifies that Thunderbird is responsible for injuries or damages resulting from its work and imposes on Thunderbird the obligation to indemnify Koch for such loss. *fn1" It also requires Thunderbird to maintain at its own expense all insurance specified in the Construction Contract, including workmen's compensation insurance, owner's liability and property insurance, and contractual liability and contingent liability insurance, indemnifying the Owner and Contractor.

 The Insurance Policies

 As required by the Subcontract, Thunderbird purchased a general liability insurance policy dated September 24, 1990 issued by National Union Fire Insurance Company ("National Union") with limits of $ 1,000,000 per occurrence. Although the policy generally covers damages due to bodily injury and property damage, it also enumerates a number of exclusions from coverage, including one for bodily injury to an employee. This exclusion is set forth in an endorsement for Employee Bodily Injury Exclusion attached to the policy. This endorsement states that the policy does not apply to:

 
(e) "Bodily injury" to:
 
(1) an employee of the insured arising out of and in the course of employment by the insured; . . .
 
(3) any relative or member of the family of that past, present, or prospective employee as a consequence of (1) or (2) above.

 This exclusion applies:

 
(1) whether the insured is or may be held liable as an employer or in any ...

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