The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent (opinion by Justice Mazzarelli), determined that a massive 750-foot tower crane destroyed during Hurricane Sandy was not included in the policy-definition of “Temporary Works” and was included in a policy-exclusion for “contractor’s tools, machinery, plant and equipment.” Damage to the crane, therefore, was not covered:
The policy defines a temporary structure as something that is “incidental to the project.” Although the term incidental is not defined, “it is common practice for the courts of this State to refer to the dictionary to determine the plain and ordinary meaning of words to a contract” … .
Black’s Law Dictionary defines the term “incidental” as”[s]ubordinate to something of greater importance; having a minor role” (10th ed 2014]). The American Heritage Dictionary, defines incidental as “[o]f a minor, casual, or subordinate nature” (5th ed 2011]). The Merriam-Webster Online Dictionary defines the term “incidental” as “being likely to ensue as a chance or minor consequence” (11th ed 2003).
Applying these definitions, the 750-foot tower crane is not a structure that is “incidental” to the project. Indeed, rather than ensuing by chance or minor consequence … the “[b]uilding was specifically designed to incorporate the Tower Crane during construction” and the crane’s design and erection involved an “in-depth process” that had to be approved by a structural engineer. Moreover, once it was integrated into the structure of the building, the custom designed tower crane, rather than serving a minor or subordinate role, was used to lift items such as concrete slabs, structural steel and equipment, was integral and indispensable, not incidental, to the construction of the 74-story high-rise, which could not have been built without it. Accordingly, the tower crane does not fall within the policy’s definition of Temporary Works. Lend Lease (US) Constr. LMB Inc. v Zurich Am. Ins. Co., 2015 NY Slip Op 09389, 1st Dept 12-22-15
INSURANCE LAW (DAMAGE TO MASSIVE CONSTRUCTION CRANE NOT COVERED BY TEMPORARY WORKS CLAUSE)/CONTRACT LAW (DAMAGE TO MASSIVE CONSTRUCTION CRANE NOT COVERED BY TEMPORARY WORKS CLAUSE IN POLICY)