The First Department, in a full-fledged opinion by Justice Renwick, over an extensive dissenting opinion by Justice Kahn, determined that, under the unambiguous terms of the policy, the absence of a written contract directly with the additional insured precluded coverage for the additional insured, despite a written agreement with a third party to provide coverage for the additional insured. The lawsuit stemmed from damage to surrounding buildings during construction:
The principal issue in this appeal is the interpretation of the additional insurance endorsement in the policy which provides that an additional insured is “any person or organization with whom you [the insured] have agreed to add as an additional insured by written contract.” Trial courts have arrived at conflicting interpretations of a similarly worded additional insured clause as to whether coverage is extended not only to those “with whom” the insured agreed, but also to those “for whom” the insured agreed to provide coverage … . We hold that the subject additional insured clause covers only those that have a written contracts directly with the named insured. * * *
… [W]e find that the language in the “Additional Insured-By Written Contract” clause of the … policy clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured. Since there is no dispute that [the insured] did not enter into a written contract with the JV (joint venture), [the insured’s] agreement in its contract with DASNY (Dormitory Authority of the City of New York) to procure coverage for the JV is insufficient to afford the JV coverage as an additional insured under the … policy. Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2016 NY Slip Op 06052, 1st Dept 9-15-16
INSURANCE LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/CONTRACT LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/ADDITIONAL INSURED (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)