Starr Indemnity & Liability Company ("Starr") sued and sought a declaratory judgment that the defendant Excelsior Insurance Company ("Excelsior") is liable to indemnify the parties to an underlying personal injury penalty ("Underlying Action"). Starr claims that the parties are "further insured" under policies issued by Excelsior to a non-party, and is now seeking compensation for 50% of the compensation payments they incurred in the underlying action. In Starr Indemnity & Liability Company v. Excelsior Insurance Company 19 Civ. 3747 (KPF), United States District Court Southern District Of New York (February 1, 2021) the USDC resolved the dispute by applying the contracts as written  BACKGROUND
In April 2015, Kenneth Jacobsen initiated the underlying action by suing JPMorgan Chase & Co. (“JPMorgan”) owns premises at Metrotech Center 4 in Brooklyn, New York (“Jobsite”). JPMorgan retained Americon Construction, Inc. (“Americon”) to serve as the main contractor for a construction project on Jobsite. Americon continued to employ National Acoustics, Inc. ("National Acoustics") as the project's subcontractor for drywall and roofing and Tri-State Computer Flooring Co., Inc. ("Tri-State") as the project's subcontractor for flooring.
Jacobsen, an employee at National Acoustics, was injured while performing work at Jobsite when his scaffolding tipped over. He suffered serious and permanent injuries without any fault of his own. Jacobsen's complaints are named JPMorgan, Americon and the New York City Industrial Development Agency as respondents (collectively referred to as "Underlying Defendants"). During the trial, the parties reached an agreement under which Jacobsen would receive $ 3,750,000.
According to their subcontracts with Americon, Tri-State and National Acoustics, it was necessary to obtain a primary and excessive insurance under which the underlying Defendants would be included as additional insured.
The contract between Tri-State and Americon
The dissolution of the cross proposals activated the text and the interplay between the provisions of the contracts between Tri-State and Americon and the contracts between Tri-State and Excelsior. To begin with, the Tri-State Agreement provided that Tri-State would purchase and maintain insurance policies that provided Americon and JPMorgan with certain protections, in particular protection for "[c] bodily injury" and "[c] personal injury damages. "Which may arise as a result of or results of operations, whether or not such operations or attempts at operation are to be carried out by [Tri-State] or by any of its subcontractors or agents or by any person directly or indirectly employed by any of them or by any other person for whose
In addition, the agreement provided that Americon's agreement with JPMorgan was "incorporated by reference" and that all entities that Americon was required to name as additional insured would be named and included as additional insured on Tri-State insurance.
The Excelsior policy contains a number of provisions that define "Additional insured."
In October 2015, wh While the underlying action was pending, the underlying defendants initiated a third-party action against the trestate and entity and sought compensation and grants (the "third-party action"), and the underlying defendants' claims were reviewed before a jury, which ruled that both Tri-State and the underlying defendants were negligent.When the jury was asked to share responsibility, it found that Tri-State was 35% liable for the accident and that the underlying defendants were 65% liable.
In accordance with the jury's decision, Starr agreed that pay 65% of the settlement to Jacobsen under the agreement in the underlying measure.Excelsior agreed to pay the remaining 35% of the settlement fees, in accordance with the jury's determination regarding Tri-State negligence.Starr reclaimed half of what it paid in accordance with with the additional insured clauses in the insurances.