Strauss contracted to strip and repaint a rooftop steel carriage track at the Metropolitan Opera. Strauss’s CGL policy contained a clause adding, as an additional insured, any person or organization that had a written agreement with Strauss to be added as an additional insureds on Strauss’s policy.
An exhibit to the form contract between Strauss and the Met said:
b.Owners and contractors protective liability insurance with a combined single limit of $5,000,000.00. Liability should add the Metropolitan Opera Association as an additional insured and should include contractual liability and completed operations coverage.
c.Comprehensive General Liability. Combined coverage for property and bodily injury with a minimum single limit of $5,000,000.00 (Limits may be met with an ‘Umbrella Policy’).
Strauss did not obtain an OCP policy.
A worker fell off a ladder on September 16, 2008. The worker eventually sued the Met under the Labor Law; the Met ultimately impleaded Strauss. The Court of Appeals held that Strauss was not covered for the claim due to late notice of the occurrence.[i]
The Court of Appeals found that the contract required Strauss to make the Met an additional insured on an OCP policy. Since the contract did not express that requirement for the GCL policy, the Met was not an additional insured.
Judge Read dissented, reasoning that while the “additional insured” requirement may have been “awkwardly phrased and infelicitously placed,” its reference to “completed operations coverage” was an obvious reference to the typical CGL policy.
Strauss Painting, Inc., v Mt. Hawley Ins. Co. (NY Nov. 24, 2014).
[i] Since the amendment of Insurance Law § 3420(a)(5), effective for policies issued on or after January 17, 2009, would now require the insurer to demonstrate prejudice arising from the late notice, we will not analyze that aspect of the opinion.