Case 1:10-cv-00035-RJA-HKS Document 102 Filed 07/29/14 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`______________________________________
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`ZOOLOGICAL SOCIETY OF BUFFALO, INC.,
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`Plaintiff,
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`v.
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`CARVEDROCK, LLC and
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`BURLINGTON INSURANCE COMPANY,
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`Defendants.
`_______________________________________
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` 10-CV-35-A(Sr)
`DECISION AND ORDER
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`This insurance coverage dispute stems from a 2008 accident in which an
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`employee of CarvedRock, LLC, a specialty concrete company, fell from scaffolding
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`during construction of a new exhibit at the Zoological Society of Buffalo (“the Zoo”).
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`The employee brought a personal injury action against the Zoo and CarvedRock in
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`New York Supreme Court. The Zoo then filed this action against CarvedRock and
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`CarvedRock’s insurer, Burlington Insurance Company, seeking a declaration that
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`the Zoo is an additional insured on CarvedRock’s insurance policy. For the reasons
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`stated below, the Court holds that the Zoo is not an additional insured on
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`CarvedRock’s policy from Burlington. The Court therefore adopts the Report and
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`Recommendation in its entirety.
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`Background
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`In 2006, the Zoo entered into a contract with Manning Squires Henning
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`(MSH) to serve as general contractor for construction of the Zoo’s new rainforest
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`1
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`______________________________________
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`ZOOLOGICAL SOCIETY OF BUFFALO, INC.,
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`
`
`
`
`Plaintiff,
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`
`
`v.
`
`
`
`
`
`
`
`
`
`
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`CARVEDROCK, LLC and
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`BURLINGTON INSURANCE COMPANY,
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`
`
`
`
`Defendants.
`_______________________________________
`
`
`
`
`
`
`
` 10-CV-35-A(Sr)
`DECISION AND ORDER
`
`
`This insurance coverage dispute stems from a 2008 accident in which an
`
`employee of CarvedRock, LLC, a specialty concrete company, fell from scaffolding
`
`during construction of a new exhibit at the Zoological Society of Buffalo (“the Zoo”).
`
`The employee brought a personal injury action against the Zoo and CarvedRock in
`
`New York Supreme Court. The Zoo then filed this action against CarvedRock and
`
`CarvedRock’s insurer, Burlington Insurance Company, seeking a declaration that
`
`the Zoo is an additional insured on CarvedRock’s insurance policy. For the reasons
`
`stated below, the Court holds that the Zoo is not an additional insured on
`
`CarvedRock’s policy from Burlington. The Court therefore adopts the Report and
`
`Recommendation in its entirety.
`
`Background
`
`In 2006, the Zoo entered into a contract with Manning Squires Henning
`
`(MSH) to serve as general contractor for construction of the Zoo’s new rainforest
`
`
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`1
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`Case 1:10-cv-00035-RJA-HKS Document 102 Filed 07/29/14 Page 2 of 5
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`exhibit. MSH then entered into a subcontract with CarvedRock, LLC, which
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`required CarvedRock to obtain Commercial General Liability (CGL) insurance
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`naming the Zoo and MSH as additional insureds. CarvedRock obtained a CGL
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`policy from Burlington Insurance. That policy contains an endorsement which
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`provides coverage to:
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`Any person or organization with whom [CarvedRock] ha[s] agreed,
`in a written contract, that such person or organization should be
`added as an insured on [CarvedRock’s] policy, provided such
`written contract is fully executed prior to the “occurrence” in which
`coverage is sought under this policy.
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`In the underlying personal injury action, the employee named the Zoo and
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`CarvedRock as defendants. The Zoo tendered its defense to Burlington, claiming
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`that the Zoo was an additional insured on CarvedRock’s policy. Burlington,
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`however, disclaimed coverage. The Zoo filed this action seeking a declaratory
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`judgment that it is an additional insured on Burlington’s policy.
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`Magistrate Judge Schroeder, to whom the Court referred the case pursuant
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`to 28 U.S.C. § 636(b), filed a Report and Recommendation which recommends
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`holding that the Zoo is not an additional insured on CarvedRock’s policy. The Zoo
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`filed timely objections, and the Court heard oral argument on July 25, 2014.
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`Because the case is before the Court on a dispositive motion, the Court must
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`review the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1).
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`Case 1:10-cv-00035-RJA-HKS Document 102 Filed 07/29/14 Page 3 of 5
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`Discussion
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`The legal issue here is very straightforward. The Court is asked to interpret
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`the additional insured endorsement contained in the insurance policy from
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`CarvedRock’s insurer, Burlington, which, as noted above, provides coverage for
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`“[a]ny person or organization with whom [CarvedRock] ha[s] agreed, in a written
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`contract, that such person or organization should be added as an insured on
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`[CarvedRock’s] policy.” The Zoo argues that the contract between CarvedRock and
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`MSH, which requires CarvedRock to name the Zoo as an additional insured on
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`CarvedRock’s policy, is sufficient to satisfy the endorsement’s language covering
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`“any . . . organization with whom [CarvedRock] ha[s] agreed, in a written contract.”
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`Burlington, on the other hand, argues that the endorsement requires that there be a
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`contract between the Zoo and CarvedRock.
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`The parties’ disagreement in this case largely centers around which New
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`York Supreme Court cases to have addressed this issue are more persuasive. The
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`Court agrees with Magistrate Judge Schroeder that those cases which require that
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`there be a contract between the named insured and the putative insured more
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`accurately interpret the endorsement. The endorsement in this case provides that
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`additional insureds include only those “with whom” CarvedRock has entered into “a
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`written contract.” The Zoo urges the Court to focus on the phrase “in a written
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`contract.” However, the Court cannot read this clause in isolation from the
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`remainder of endorsement. The endorsement as a whole plainly requires not only
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`Case 1:10-cv-00035-RJA-HKS Document 102 Filed 07/29/14 Page 4 of 5
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`that there be a “written contract,” but that that “written contract” be between
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`CarvedRock and the putative insured. If the phrase “with whom [CarvedRock] ha[s]
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`agreed” contained a different preposition—if, for example, the word “for” were
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`substituted for the word “with”—then the Zoo might have a stronger argument.
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`However, the Court must interpret the endorsement as it is written. See White v.
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`Continental Cas. Co., 9 N.Y. 3d 264, 267 (2007) (“As with any contract,
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`unambiguous provisions of an insurance contract must be given their plain and
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`ordinary meaning.”) Thus, because the Zoo is not a party “with whom” CarvedRock
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`has contracted, Dkt. No. 90-1 ¶ 20, the Court holds that the Zoo is not an additional
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`insured under the policy issued by Burlington to CarvedRock.
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`As a final matter, in its cross-motion for summary judgment on the issue of
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`the additional insured endorsement, Burlington also requested a declaration that it
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`does not owe CarvedRock coverage with respect to the Zoo’s claims against
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`CarvedRock for contractual indemnity and breach of contract in the underlying state
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`court action. See Dkt. No. 90. Magistrate Judge Schroeder concluded that this
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`“determination is beyond the scope of the declaratory judgment action commenced
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`by” the Zoo. Dkt. No. 96 at 10. Burlington did not object to this conclusion, and the
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`Court therefore reviews it for clear error. Finding none, the Court adopts this
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`4
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`conclusion as its own.
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`Case 1:10-cv-00035-RJA-HKS Document 102 Filed 07/29/14 Page 5 of 5
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`Conclusion
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`For the reasons stated above, the Court adopts the Report and
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`Recommendation, Dkt. No. 96, in its entirety. Therefore:
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`IT IS ORDERED that the Zoo’s motion, Dkt. No. 89, is DENIED; and
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`IT IS FURTHER ORDERED that Burlington’s motion, Dkt. No. 90, is
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`GRANTED IN PART and DENIED IN PART. Burlington’s motion is granted to the
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`extent that it seeks a declaration that Burlington does not owe additional insured
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`coverage to the Zoo under the insurance policy that Burlington issued to
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`CarvedRock. Burlington’s motion is denied to the extent that it seeks any further
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`declaratory relief.
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`SO ORDERED.
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`DATED: July 29, 2014
`Buffalo, New York
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`s/Richard J. Arcara__________
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`HONORABLE RICHARD J. ARCARA
`UNITED STATES DISTRICT JUDGE
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`5
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