On summary judgment, the insured general contractor prevailed not only on the duty to defend, but also the duty to indemnify. Wausau Underwriters Ins. Co. v. Old Republic Gen. Ins. Co., 2015 U.S. Dist. LEXIS 103954 (S.D. N. Y. Aug. 7, 2015). 170 Broadway entered into a construction management agreement with McGowan Builders Inc. to serve as its construction manager for a hotel being built in Manhattan. Under the agreement, McGowan obtained a general liability policy from Old Republic naming 170 Broadway as an additional insured. 170 Broadway also secured its own policy from Wausau. Adam Burawski, an employee of a security company, came to the 170 Broadway site to meet with McGowan about provided security services for the project. Before the meeting, Burawski tripped and fell, sustaining a serious injury. Burawski filed suit against 170 Broadway. After the suit was tendered, Old Republic notified Wausau that the claim did not fall within the additional insured coverage in the Old Republic policy. Therefore, Old Republic declined to defend or indemnify 170 Broadway. Wausau sued Old Republic contending Old Republic was obligated to provided a defense and indemnify 170 Broadway. There were two additional insured endorsements in Old Republic's policy. Both provided additional insured coverage where (1) such coverage was required by written contract, and (2) the liability at issue arose from an act or omission that was part of McGowan's "ongoing operations." There was no dispute that McGowan was required by a written agreement to provide a policy naming 170 Broadway as an additional insured. Old Republic argued the second criteria was not satisfied because Burawski's injury could not have stemmed from McGowan's "acts or omissions." McGowan had not yet begun the "work." The court disagreed. Whether the "work" as defined by contract had begun was irrelevant because the injury "arose out of" McGowan's ongoing operations, triggering the additional insured provisions. Pursuant to the agreement with 170 Broadway, McGowan was in the process of hiring subcontrators when the accident occurred. Therefore, the "work" had begun for purposes of the additional insured endorsements. Accordingly, Old Republic had a duty to defend 170 Broadway. Regarding the duty to indemnify, Burawski's claims "arose out of" McGowan's "ongoing operations" and were therefore also covered by the endorsements in Old Republic's policy. Under New York law, a policy covering liability "arising out of" the policy holder's operations required only that there be some causal relationship between the injury and the risk for which coverage is provided. It was possible to determine whether an injury arose out of an insured's operations without reaching a determination on liability, so a final determination on causation was not necessary. As the court had already concluded that Burawski's injuries arose out of McGowan's ongoing operations, it followed that 170 Broadway was entitled to indemnification from Old Republic even without a determination regarding legal causation. Old Republic therefore had a duty to indemnify if 170 Broadway was found liable in the Burawski action. Consequently, Wausau's motion for summary judgment was granted.
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