LIBERTY MUTUAL INSURANCE COMPANY v. James O'Donnell, et al., Defendants. (2005)

Order, Supreme Court, New York County (William A. Wetzel, J.), entered December 10, 2003, which declared that plaintiffs Montefiore Medical Center and KeySpan Energy Management are additional insureds under a policy issued by defendant Ohio Casualty Insurance Company to defendant Trystate Mechanical, that the Ohio Casualty policy is primary to all other coverage, and that Ohio Casualty had a duty to defend and indemnify Montefiore and KeySpan in an underlying lawsuit, and further denied as moot the request by defendants Trystate and Ohio Casualty to compel responses to discovery, unanimously modified, on the law, the declarations of primary coverage and absolute indemnification vacated and plaintiffs directed to comply with outstanding discovery demands, and otherwise affirmed, without costs.

Montefiore and KeySpan were clearly additional insureds under the liability policy issued by Ohio Casualty to Trystate.   Furthermore, in the absence of any language in the subcontract between KeySpan and Trystate to the contrary, the policy was to provide primary coverage subject to other provisions of the contract and policy (see e.g. Tishman Constr. Corp. of N.Y. v. American Mfrs. Mut. Ins. Co., 303 A.D.2d 323, 757 N.Y.S.2d 535 [2003] ).   In this case, the policy provided coverage to additional parties only where the cause of an accident was not solely the result of negligence by the additional insureds.   Since we find issues of fact as to whether the absence of the protective shroud around the water pump was solely a result of the additional insureds' negligence, any declaration as to the ultimate duty to indemnify, as well as whether coverage will be primary, must await adjudication of the underlying lawsuit.   In view of our finding that coverage cannot be resolved as a matter of law, plaintiffs are directed to comply with outstanding discovery requests.