The Appellate Division, Second Department, has once again enforced a venue selection clause in a nursing home admission agreement. Although the nursing home was located in Brooklyn, the agreement placed all litigation in Suffolk County. Puleo v Shore View Ctr. for Rehabilitation & Health Care (2d Dept. 10/7/2015). Just two months ago, a clause shifting venue to Nassau County was similarly enforced. Casale v Sheepshead Nursing & Rehabilitation Ctr/. (2d Dept. 8/5/2015).
CFC had a blanket endorsement on its insurance policy from Utica that made an additional insured out of anyone that CFC was contractually bound to get such coverage for. The policy, however, excluded overage for injuries sustained by employees of any insured.
A CFC employee got hurt on the job and sued Adelphi, whose contract with CFC required that CFC get additional insured coverage for Adelphi. Adelphi brought a third party action against CFC.
Utica sent a disclaimer to CFC as soon as the accident was reported in 2011. Adelphi tendered its defense to Utica in May and November of 2012, but Utica never sent a disclaimer to Adelphi until the day after it received a copy of the contract in January of 2013.
Too late, says the First Department. Utica knew the loss was not covered when it sent its disclaimer to CFC in 2011, and knew that the employee-exclusion applied to the loss, regardless of whether Adelphi qualified as an additional insured because of its contract with CFC.
Endurance Am. Specialty Ins. Co. v Utica First Ins. Co. (1st Dept. 10/8/2015)