By: Thomas S. Tripodianos Published: May 2011

Is General Contractor entitled to coverage from Subcontractor's Carrier?

Question. Injured Employee was injured during the course of his employment while working at the construction site. General Contractor and General Contractor's Carrier allege that General Contractor is entitled to coverage from Subcontractor's Carrier pursuant to a certificate of insurance that was issued by Subcontractor's insurance broker that stated that General Contractor was an additional insured.

Subcontractor's Carrier denies liability contending that General Contractor is not entitled to coverage under the policy since General Contractor is neither a named insured nor an additional insured on the policy. According to Subcontractor's Carrier, the certificate of insurance issued by Subcontractor's insurance broker, who is not Subcontractor's Carrier's agent, is not binding upon it.

General Contractor and General Contractor's Carrier contend, in substance, that General Contractor is an insured of Subcontractor's Carrier because the certificate of insurance issued by Subcontractor's insurance broker noted Subcontractor's Carrier as such.

Is General Contractor entitled to coverage from Subcontractor's Carrier?

Answer. No.  A certificate of insurance is merely evidence of a contract for insurance, not conclusive proof that the contract exists, and not, in and of itself, a contract to insure.

General Contractor seeks to impose an obligation upon Subcontractor's Carrier to defend and indemnify General Contractor against an underlying personal injury action filed by Injured Employee, an employee of Subcontractor.

The Certificate at issue specifically states:

"THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW."

It is well settled that the insured has the burden to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage. Moreover, it has been held that insurance coverage extends only to named entities and/or individuals defined as insured parties under the relevant terms of the policy.

On summary judgment, a certificate may be sufficient to raise an issue of fact, especially where additional factors exist favoring coverage but it is not sufficient, standing alone as it does here, to prove coverage as a matter of law.

Given the foregoing, the Court finds that General Contractor and General Contractor's Carrier have failed to cite any facts or factors, policy, declaration, term condition, exclusion or endorsements to establish that General Contractor was either a named insured or an additional insured on the Subcontractor's Carrier policy or that it had any contractual relationship with Subcontractor's Carrier.

It should be noted that the issues presented by this particular fact pattern have resulted in conflicting decisions amongst the Court's of New York. Therefore, depending in the jurisdiction in which the case is litigated a different result may be reached. We are hopeful that this issue will be addressed by the Court of Appeals (the highest court in New York) which should provide a uniformity of result.

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