United States District Court, S.D. New York
Diane K. Kancam, Edward G. Warren, Voute Lohrfink Magro & McAndrew, LLP, White Plains, NY, for Plaintiff Arch Insurance Company.
Ryan K. Cummings, Hodgson Russ, LLP, Buffalo, NY, for Defendant Illinois Union Insurance Company.
Lance J. Kalik, Tracey K. Wishert, Riker Danzig Scherer Hyland & Perretti, LLP, Morristown, NJ, for Defendant Harleysville Worcester Insurance Company.
OPINION & ORDER
DENISE COTE, District Judge.
Plaintiff Arch Insurance Company ("Arch") brings a declaratory judgment action against Illinois Union Insurance Company ("Illinois Union"), and Harleysville Worcester Insurance Company ("Harleysville") (collectively, "Defendants"), seeking indemnification for payments Arch made to settle a claim for personal injuries brought by Enio Antonio Rodrigues ("Rodrigues"), an employee of the Defendants' insured, Erie Painting & Maintenance, Inc. ("Erie Painting"), against Arch's insured, the New York State Thruway Authority ("Authority") ("Rodrigues Incident"). Rodrigues sustained injuries when he fell from a trailer while performing work under a contract between Erie Painting and the Authority. Illinois Union has moved to dismiss Arch's Second Amended Complaint ("SAC"). For the following reasons, the motion is granted.
The following facts are uncontroverted or taken in the light most favorable to Arch. Erie Painting contracted with the Authority to perform painting work. Among other things, Erie Painting's contract with the Authority required Erie Painting to defend and indemnify the Authority for any accident or injuries arising out of work performed. See New York State Thruway Authority v. Erie Painting and Maintenance, Inc., No. 27722/11 (Sup.Ct. June 17, 2013) ("Supreme Court Indemnity Opinion").
At the time of the Rodrigues Incident, the Authority was insured by Arch under a New York Owners and Contractors Protective Liability Policy (the "Arch OCPL Policy"). The Arch OCPL Policy was procured for the Authority's benefit by Erie Painting pursuant to a requirement in Erie Painting's contract with the Authority. The policy provides coverage for a one-year term, from April 4, 2008 through April 4, 2009. It also provides that the "Location of Covered Operations" is "route 8, 10, 12, 28 & 30 Hamilton & Oneida Counties, NY, " and the "Description of Operations" is "Painting 18 bridges." It further provides that Arch would pay a premium of $5, 250 in exchange for an aggregate coverage limit of $2, 000, 000. And it identified as the "Designated Contractor" "Erie Painting & Maintenance."
The Arch OCPL Policy provided for coverage for bodily injury as follows:
We will pay those sums that the insured [i.e., the Authority] becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages.... This insurance applies to "bodily injury" and "property damage" only if (1) The "bodily injury" and "property damage" is caused by an "occurrence" that takes place in the "coverage territory" and arises out of (a) Operations performed for you by the "contractor" named in the Declarations under the designated contract, including your general supervision of these operations; or (b) The existence of any condition in any portion of a state highway included under the designated contract with the "contractor" named in the declarations.
The Arch OCPL Policy also contains an "Other Insurance" clause, which addresses the policy's relationship with Erie Painting's other insurers. The "Other Insurance" clause provides that its coverage is "primary, " and that Arch will not seek contribution from Erie Painting's insurers. The clause reads in relevant part:
The insurance afforded by this policy is primary insurance and we will not seek contribution from any other insurance available to you except if the other insurance is provided by a contractor other than the designed "contractor" for the same operation and job location designated in the Declarations.
If the other insurance is available, we will share with that other insurance by the method described below. If all of the other insurance permits contribution by equal shares, we will follow this method also.... If any of the other insurance does not ...