Two insurers disputed who was responsible for coverage the additional insured contractor. Endurance Am. Spec. Ins. Co. v. Century Sur. Co., 2015 U.S. App. LEXIS 19194 (2nd Cir. Nov. 4, 2015). The district court granted summary judgment to Endurance, finding there was coverage for the additional insured general contractor after being sued by an employee of a subcontractor. Century's policy included an Action Over Exclusion clause, which excluded insurance coverage for injury to certain employees as follows: Exclusions: . . . e. Employer's Liability "Bodily injury" to: (1) an "employee" of the named insured arising out of and in the course of: (a) Employment by the named insured; or (b) Performing duties related to the conduct of the named insured's business. The named insured was Pinnacle Construction & Renovation Corp. Coverage was sought for the defense of the general contractor, Hayden Building Maintenance Corporation, for injury to an employee of the subcontractor/insured, Pinnacle. The policy, however, unambiguously excluded coverage for Hayden due to injuries to Pinnacle's employee. Endurance argued that the Separation of Insureds provision required the court to read the Action Over Exclusion provision from the perspective of the particular insured seeking coverage. The Separation of Insureds provision stated that: [T]his insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. Therefore, Endurance argued that "the named insured" in the Action Over Exclusion provision should be replaced with "Hayden," because "this insurance applies . . . [s]eparately to each insured." Because the injured victim was not an employee of Hayden, Endurance contended that the policy would not exclude coverage to Hayden for the employee's injuries. The court determined that this logic would apply if the Action Over Exclusion clause used the language "the insured" rather than "the named insured." Then, the provision would be read to replace "the insured" with "Hayden," because Hayden was seeking coverage. But here, the Action Over Exclusion clause stated "the named insured." Therefore, the district court erred in reading "Hayden" into the words "the named insured" in the Action Over Exclusion. The judgment of the district court was reversed.
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