Partial summary judgment win in Declaratory Judgment Action for client Harleysville Ins. Co.

In The Martin Group v. Pennsylvania National Ins. Co. (Westchester County Supreme Court, Index No. 50007/2014), our client was the general contractor for the jobsite who hired Penn National’s named insured, Industrial Maintenance, to perform painting services.  Industrial, in turn, hired the injured plaintiff’s employer, DLDC General Contracting.  The injured plaintiff fell 20 feet through an unsecured opening in the floor of the jobsite.  The DJA was commenced for pursuit of additional insured coverage on a primary basis under the Penn National policy.   Judge Charles Wood agreed with our argument that NY law applied to the Penn National policy and the issue of additional insured coverage despite Penn National’s argument that New Jersey law should apply since Penn National’s named insured was a NJ resident.  The judge also agreed with us that The Martin Group qualified as an additional insured under the Penn National policy, that the Penn National policy affords primary coverage to The Martin Group and that Penn National owes a defense to The Martin Group. Despite our contention that the Harleysville policy issued to The Martin Group is excess to the Penn National policy, Judge Wood found that the Harleysville policy affords primary coverage to The Martin Group.  He therefore concluded that Penn National owes Harleysville reimbursement of 50% of its defense costs in the underlying action.  As for indemnification owed to The Martin Group by Penn National, Judge Wood deferred the issue until a factual determination is made in the underlying action as to whether the injured plaintiff’s accident was caused by an ‘act or omission’ of Penn National’s named insured or anyone acting on their behalf.  This portion of the decision contravenes recent First Department case law and an appeal will be filed to the Second Department for resolution.