The following papers were read on the third party claimant’s motion
against the third party defendant for a declaratory judgment pursuant to Court
of Claims Act section 9(9-a), and on the third party defendant’s cross
motion to dismiss the third party claim or in the alternative to dismiss the
claim: Notice of Motion, Affirmation and Exhibits annexed; claimant’s
Affirmation in Opposition; Notice of Cross Motion, Affirmation, Memorandum of
Law and Exhibits annexed; claimant’s Affidavit in Opposition to Cross
Motion, Exhibits annexed, Memorandum of Law; defendant’s affirmation in
Reply in support of Cross Motion to dismiss the claim, Memorandum of Law; third
party defendant’s Reply.
The claimant alleges that he was injured when a vehicle owned and operated by
Laura Huddleston traveling southbound on the Meadowbrook Parkway lost control
rounding an exit ramp and ran off the roadway striking him. At the time,
claimant was delivering lamp posts to a construction site adjacent to the east
side of the ramp, leading from the southbound Meadowbrook Parkway to the
westbound Loop Parkway. The lamp posts were intended for Lighting Maintenance
Inc. (“LMI”), which had been awarded a contract by the State to
upgrade and install the lighting system on the Meadowbrook Parkway and Loop
Parkways in the town of Hempstead.
The claim alleges that the State of New York was negligent in failing to place
concrete barriers and post warnings around the construction area; creating or
having knowledge/notice of a dangerous, hazardous, defective condition and
allowing it to remain without remedying it; and failure to properly supervise
The State moves pursuant to Court of Claims Act § 9(9-a) and CPLR 3212 for
a declaratory judgment that the third party defendant Merchants Mutual Insurance
Company and Merchants Insurance Group (“Merchants”) is obligated to
defend and indemnify the State in the underlying claim. Merchants opposes the
application and cross-moves for summary judgment dismissing all claims against
it and further moves for an order of dismissal of all claims made by claimant
against the State.
The State maintains that the contract with LMI required LMI to purchase and
maintain an insurance policy naming the State as an insured, that LMI purchased
said insurance from Merchants naming the State as an insured as set forth in
certificates of insurance, and that Merchants is therefore required to provide
the State with defense and indemnification.
Merchants contends that nothing in the agreement included in the State’s
submissions demonstrates coverage for the State by Merchants, since the
certificates of insurance merely show that if required, Merchants would provide
coverage to the State. Merchants then posits that even if it were required to
provide coverage to the State, the facts of this case do not warrant such
coverage. Specifically, Merchants argues that any policy would provide coverage
for the State based upon work done by LMI in furtherance of the contract, but
that in this case claimant alleges that the State failed to properly barricade
or protect a work area to prevent vehicles from straying into the work area, and
“any insurance which covers the entire scope of a contractor’s work
would not cover any claims for the placement of barriers or other traffic
control devices as none of these things were required by contract”
(Merchants’ cross motion, para 32).
In its reply the State reasserts that Merchants has a duty to defend and
indemnify pursuant to the certificates of insurance, the contract, and the
Standard Specifications which are specifically incorporated by the contract and
certificates of insurance.
To this Merchants
responds that nothing in the documents proffered by the State establishes that
it is entitled to coverage for the underlying incident.
The certificates of insurance (Exhibit C, Motion) reference the contract, name
LMI as Insured Contractor, name Merchants as Insurance Company, and list several
types of insurance in force, including protective liability in the name of the
People and the State of New York. They also reference section 107-06 of the
The Standard Specifications (Exhibit B, State Reply) require that the
contractor purchase “Protective Liability Insurance issued to and
covering the liability for damages imposed by law upon The People of the State
of New York, the State of New York . . . with respect to all operations under
the agreement by Contractor or by his subcontractors including omissions and
supervisory acts of the State” (section 107-06). The Standard
Specifications are made part of the contract in Article 2 of the agreement
between the State and LMI (Exhibit B, Motion).
Whether Merchants’ has a duty to defend the underlying claim depends on
whether the facts alleged in the claim come within the terms of the policy,
construed as a whole, to effect the apparent intent of the parties. A.
Meyers & Sons Corp. v Zurich American Insurance Group, 74 NY2d 298;
Seaboard Surety Co. v Gillette Co., 64 NY2d 304.
The claim alleges that the State failed to properly barricade or protect a work
area to prevent vehicles from straying into the work area. Merchants argues
that it is not required to defend because the contract did not require LMI to
install any protective barriers, signage or other traffic controls.
While nothing in the record before the Court contradicts Merchants’
assertion that the placement of barriers or other traffic control devices were
specifically required by the contract, that is not dispositive of
Merchants’ obligation to defend the claim. Nor would the ultimate
resolution of whether there was a failure to properly protect the site, whether
by temporary barriers or otherwise, affect that obligation.
It is well settled that where an insurance policy includes the insurer’s
promise to defend the insured against specified claims as well as to indemnify
for actual liability, the insurer’s duty to furnish a defense is broader
than its obligation to indemnify (see International Paper Co. v Continental
Cas. Co., 35 NY2d 322, 326; Lionel Freedman, Inc. v Glens Falls Ins.
Co., 27 NY2d 364, 368). “So long as the claims, even though
predicated on debatable or even untenable theory, may rationally be said to fall
within policy coverage, whatever may later prove to be the limits of the
insurer's responsibility to pay, there is no doubt that it is obligated to
defend [citation omitted]” (Schwamb v Fireman's Ins. Co. of Newark,
N.J., 41 NY2d 947, 949)
Upon the record before the Court, and contrary to Merchants’ contention,
the acts and omissions alleged to be a breach of the State’s duty do fall
within “all operations under the agreement by the Contractor or by his
subcontractors including omissions and supervisory acts of the State” with
respect to which section 107-06 of the Standard Specifications require
“Protective Liability Insurance issued to and covering the liability for
damages imposed by law upon The People of the State of New York, the State of
New York . . . .”
At the same time, upon examination of the record, including the deposition
testimony of two State employees (Cross Motion, Exhibits E and F), it is
apparent that an issue of fact exists as to whether there was a failure to
properly protect the site, whether by temporary barriers or otherwise. Reliance
on Weiss v Fote, 7 NY2d 579, and its progeny, in support of the argument
that the claim must be dismissed on the ground of qualified immunity, is not
supported by the record. This claim sounds in common law negligence as codified
in Labor Law § 200, and thus the State “is not entitled to qualified
immunity because its alleged negligence was not limited to a planning decision
[citations omitted]” (Iacampo v State of New York, 267 AD2d 963,
The State’s motion against Merchants is granted, the cross motion is
Accordingly, it is ORDERED and DECLARED that the third party defendant is
obligated to provide a defense to Claim Number 104435.