NATIONAL ABATEMENT CORP v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA (2006)

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about April 24, 2006, which, upon reargument, granted defendant insurer's motion for summary judgment and declared that plaintiffs are not entitled to defense and indemnification in an underlying personal injury action, unanimously affirmed, with costs.

 There is no need to engage in conflicts of laws analysis absent a conflict between the laws of New York and Pennsylvania with respect to the applicability of basic tenets of contract interpretation in determining whether plaintiffs are covered under the additional insured endorsement (see Matter of Allstate Ins. Co. [Stolarz-N.J. Mfrs. Ins. Co.], 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 [1993];  see e.g. Ehrlich v. Hambrecht, 19 A.D.3d 259, 797 N.Y.S.2d 471 [2005] ).   The party claiming insurance coverage bears the burden of proving entitlement (Kidalso Gas Corp. v. Lancer Ins. Co., 21 A.D.3d 779, 780-781, 802 N.Y.S.2d 9 [2005] ), and is not entitled to coverage if not named as an insured or an additional insured on the face of the policy (Tribeca Broadway Assoc. v. Mount Vernon Fire Ins. Co., 5 A.D.3d 198, 200, 774 N.Y.S.2d 11 [2004] ).   Here, there is additional insured coverage only if such coverage is required by a “written contract,” but none existed at the time of the accident underlying this personal injury action.   Contrary to plaintiffs' understanding, the fact that an unsigned contract may be enforceable if there is objective evidence the parties intended to be bound or the eventual writing was intended to be valid retroactively (see e.g. God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assoc., LLP, 6 N.Y.3d 371, 374, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006];  Hartman v. Baker, 2000 Pa.Super 140, 766 A.2d 347, 351, petition to appeal denied 564 Pa. 712, 764 A.2d 1070 [2000] ) has no bearing on whether there is a “written contract” pursuant to the policy endorsement.   Interpreting the insurance contract under the same principles as any ordinary business contract, we find the subject provision unambiguous, and reasonably susceptible to only one meaning (see Greenfield v. Philles Records, 98 N.Y.2d 562, 569-570, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002] ), leaving no occasion to consider parol evidence of the parties' course of conduct (239 E. 79th Owners Corp. v. Lamb 79 & 2 Corp., 30 A.D.3d 167, 818 N.Y.S.2d 194 [2006] ).

 An additional insured endorsement is an addition, rather than a limitation, of coverage (Consolidated Edison Co. of N.Y. v. Hartford Ins. Co., 203 A.D.2d 83, 84, 610 N.Y.S.2d 219 [1994] ).   If the claim falls outside the policy's coverage, as does plaintiffs' herein, the insurer is not required to disclaim (Zappone v. Home Ins. Co., 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783 [1982];  National Union Fire Ins. Co. of Pittsburgh, Pa. v. State Ins. Fund, 18 A.D.3d 202, 204, 795 N.Y.S.2d 195 [2005] ).

In view of the foregoing, we need not address plaintiffs' other contentions, which are, in any event, unavailing.