This is a claim brought by John Bruns (hereinafter “claimant”)
based upon the negligence of the State of New York (hereinafter
“State”). The claim is based upon an incident which occurred on
June 28, 2002, at the Jones Beach Marine Theater (also known as the Tommy
Hilfiger Theater) at Jones Beach State Park, Wantagh, New York. Claimant was
descending an antenna which he had been working on at the theater, when he fell.
The claim of Deborah Bruns is derivative in nature.
Claimant worked for Island Mobile Communications, Antenna & Tower, Inc.
(hereinafter “Island”). Island was a sub-contractor to Nextel,
which in turn was a contractor and licensee to Crown Communication of New York,
Inc. (hereinafter “Crown”). Pursuant to a Tower License Agreement
(hereinafter “the agreement”) between Crown and Nextel, Nextel would
maintain the antenna tower at Jones Beach Theater. The agreement provides for
Nextel to purchase liability insurance.
Defendant began a third-party action against Zurich North America (hereinafter
“Zurich”) the insurance company from which Nextel purchased a
liability policy. Defendant now moves, pursuant to Court of Claims Act
§9(9-a), for an order declaring Zurich must provide the State with a
defense in the underlying action
to the State, Nextel by agreement was to purchase and maintain an insurance
policy naming the State as an additional insured party. The State provides a
copy of the agreement as a supporting exhibit (Exhibit A). In addition, the
State furnished a copy of a certificate of insurance, but not the underlying
insurance policy, from Marsh USA, Inc., an insurance broker, which certificate
names the State as an additional insured.
Zurich opposes the motion and cross-moves to dismiss the third-party
. Zurich argues that the State is not
covered as an additional insured party in the policy which Nextel purchased.
Zurich provides a copy of the insurance policy purchased by Nextel (Exhibit 1).
Zurich states that while the State is not specifically named as an additional
insured, it could have still been covered if the agreement between Nextel and
Crown required it. Zurich argues that the agreement does not require Nextel to
purchase liability insurance naming the State as an additional insured.
In Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co., 5 AD3d
198, a similar situation occurred. A certificate of insurance existed which
named plaintiff as an additional insured but the insurance policy did not
contain plaintiff as an additional insured party. The court held a
“certificate of insurance is only evidence of a carrier's intent to
provide coverage but is not a contract to insure the designated party nor is it
conclusive proof, standing alone, that such a contract exists” (at p.
A party claiming insurance coverage has the burden of proving that such
coverage actually exists (Moleon v Kreisler Borg Florman Gen. Constr.
Co., 304 AD2d 337).
After examining the documents offered by the parties, the State has failed to
meet its burden of proving insurance coverage exists for it. The certificate of
insurance, as stated above, is not proof that insurance coverage exists.
Clearly, in examining the insurance policy, the State is not an additional named
insured. However, as indicated by Zurich, that does not preclude the State from
being an additional named insured. The insurance policy (Exhibit 1) states that
if any contract requires any other party to be an additional insured then the
Zurich policy would cover it. In examining the agreement between Nextel and
Crown, there is no requirement for the State to be named as an additional
insured. Paragraph 19 of the agreement only requires that the licensor (Crown)
be named as an additional insured. There is no requirement that the State be
named as an additional insured.
As nothing in
the agreement required the State to be named as an additional insured, the
policy does not cover the State as an “automatic additional
Based upon the foregoing, the State’s motion for a declaratory judgment
is denied and Zurich’s cross-motion to dismiss the third-party action is