United States: New York's High Court Holds Additional Insured Coverage Extends Only To Injuries Proximately Caused By Named Insured's Fault

Last Updated: August 1 2017
Article by Gabriella S. Paglieri

On June 6, the New York Court of Appeals in Burlington Insurance Co. v. NYC Transit Authority held that where liability is limited to injuries "caused, in whole or in part" by the named insured's "acts or omissions," coverage extends only to those injuries proximately caused by, not just causally linked to, the named insured's actions or omissions. The 4-2 decision reversed the intermediate appellate court's (Appellate Division, First Department) holding that under such policy language, coverage extends to injuries caused solely by the additional insured's own negligence, even where the named insured is not at fault, ending a recent streak of pro-insured decisions issued by New York courts in cases involving standard additional insured endorsements.

The Policy and Claim

In Burlington, the New York City Transit Authority (NYCTA) had contracted with Breaking Solutions, Inc. (BSI) to perform excavation work in a Brooklyn subway tunnel. Pursuant to the NYCTA's contract requirements, BSI obtained a general liability policy from Burlington Insurance Co. ("Burlington") with an endorsement naming NYCTA, the Metropolitan Transit Authority (MTA), and the City of New York (the "City"), as additional insureds. The endorsement used standard additional insured language adopted from an Insurance Services Office (ISO) form, which provided, in pertinent part, that NYCTA, MTA, and the City were additional insureds under the policy:

[O]nly with respect to liability for 'bodily injury,' 'property damage' or 'personal and advertising injury' caused, in whole or in part, by:
1. [BSI's] acts or omissions; or
2. The acts or omissions of those action on [BSI's] behalf.

During the policy period, an MTA employee was injured by an explosion that occurred when one of BSI's machines contacted an exposed electrical cable. The employee sued the City and BSI. The City tendered the defense to Burlington as an additional insured under the BSI policy, which Burlington accepted (initially under reservation of right, which it later withdrew). The City then impleaded NYCTA and MTA and asserted third party claims against them. Like the City, NYCTA also tendered its defense and that of the MTA to Burlington as additional insureds under the BSI policy. Burlington accepted tender to defend NYCTA and MTA under reservation of right that they qualify as additional insureds under the policy.

During discovery, the parties learned that NYCTA, not BSI, was solely at fault for the employee's injury. As a result, Burlington disclaimed coverage for NYCTA and MTA arguing that, consistent with the endorsement language, without evidence that BSI was negligent or otherwise at fault, NYCTA and MTA did not qualify as additional insureds under the policy. After settling with the employee, Burlington brought suit against NYCTA and MTA for declaratory judgment and indemnification to recover the settlement amount and litigation costs.

Trial Court's Decision and Appellate Division's Reversal

The New York County Supreme Court agreed with Burlington, but the appellate court reversed. It held that regardless of whether BSI was negligent, BSI's actions triggering the explosion were a cause of the employee's injury. Because, as the appellate court explained, the injury was causally connected to BSI's actions, NYCTA and MTA qualified as additional insureds under the endorsement language.

The Court of Appeals' Holding

The Court of Appeals reversed the appellate court's decision. Although the Court agreed that the endorsement language was unambiguous, it found that the appellate court wrongly interpreted the phrase "caused, in whole or in part" to mean "but for" causation instead of proximate causation.

According to the Court, under its plain meaning, the phrase "caused, in whole or in part" can only be interpreted as requiring proximate causation because "but for" causation cannot be partial. A different interpretation, the Court explained, would render the words "in whole or in part" superfluous since all "but for" causes bear some connection to the outcome regardless of whether any or all actually result in legal liability.

The Court rejected the argument that the phrase "in whole or in part" was necessary to clarify that coverage was not limited only to injuries "solely caused by" the named insured. Since there may be more than one proximate cause to an injury, the Court held that the phrase "caused, in whole or in part, by" is not synonymous to "solely caused by."

Moreover, the Court emphasized that the endorsement limited additional insured coverage to "liability" and liability, the Court reasoned, implies a certain degree of fault. As the Court put it:

That the policy extends coverage to an additional insured "only with respect to liability" establishes that the "caused, in whole or in part, by" language limits coverage for damages resulting from BSI's negligence or some other actionable "act or omission."

The dissent argued that Burlington's arguments must fail because the policy doesn't specifically reference "proximate causation." The Court quickly disposed of this argument holding that the endorsement language expressed in "lay terms" the well-understood legal doctrine of proximate causation.

Instructive Dicta

Although the Court based its holding on the plain language of the policy, its analysis went beyond the four corners of the agreement to show additional support for its holding. In dicta, the Court rejected the notion that the phrase "arising out of," which results in coverage regardless of named insured's negligence, is the functional equivalent of "caused, in whole or in part." Looking at the intent behind the ISO form's latest amendment, which replaced the phrase "arising out of" with "caused, in whole or in part", the Court noted that the change was meant to prevent coverage from extending to injuries caused by an additional insured's sole negligence.

The Court went even further and concluded that a different holding would run contrary to the overall purpose of additional insured coverage, which is to cover the named insured's actions that may expose the additional insured to liability and not to cover injuries that result solely from the additional insured's conduct.

Comment

This decision is a big win for CGL insurers providing additional insured coverage because it clarifies that additional insured coverage is limited to only the liability proximately caused by the named insured's actions or omissions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Butler Snow LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Butler Snow LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions