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New York Appellate Court Grants Summary Judgment for Defendant in Construction Accident Case


The plaintiff in the case is Bierzo Construction Corporation, LLC. The Defendant in the case is The Everest National Insurance Company. The third party plaintiff in the case is The Everest National Insurance Company and the third party defendants are Port-Land Construction Corporation and Utica First Insurance Company.

Case History

A New York Injury Lawyer explained that this is an insurance action, which comes from the underlying action from a fatal accident that occurred on October 7, 2006. The fatal accident occurred at a construction site when Erasmo Sanchez Lopez was struck by a brick while working at the site.

The plaintiff, a defendant in an underlying action, commenced this action against Everest National Insurance, seeking the declaration that the insurance company is obligated to defend and indemnify the plaintiff in the underlying action against them.

Everest National Insurance has issued a third party action against the employer of Mr. Lopez, Port-Land Construction Corporation and the insurer for the company, Utica First Insurance Company. Everest National Insurance seeks a declaration that Utica First Insurance Company is deemed to owe indemnification and defense to the plaintiff and additionally Utica First Insurance is obligated to indemnify and defend the plaintiff in the underlying action based on the fact that the plaintiff was an additionally insured under a policy that was issued by Utica to Port-Land.

Case Facts

The plaintiff had been hired to perform work at 765 Amsterdam Avenue in New York, New York and obtained a Commercial General Liability Insurance Policy from the defendant, Everest National Insurance.

A sub contract with Port-Land was entered on August 25, 2006. Port-Land obtained an additional insurance policy from Utica First Insurance Company. The insurance broker for Port-Land issued a Certificate of Insurance on September 2, 2006, which reflected the plaintiff as an additional insured under the policy that was issued through Utica First Insurance Company. Port-Land’s employee, Mr. Lopez, was injured in a construction accidenton October 7, 2006.

On January 29, 2007, a representative from UTC Risk Management Services informed Port-Land of the underlying action and enclosed a copy of the summons and the complaint in the underlying action.

Utica First Insurance Company requested a copy of the contract between the plaintiff and Port-Land. A Manhattan Personal Injury Lawyer said they received a copy of both the contract and the Certificate of Insurance on March 14, 2007. Utica disclaimed coverage to Port-Land on March 27, 2007. This disclaimer was based on the exclusions for bodily injuries sustained by Port-Land employees and the exclusion for liabilities assumed under the contract or agreement.

Case Results

Based on the evidence that has been provided by the plaintiff, defendant, and third party plaintiff and defendants, the court has ordered the following verdicts:

A Long Island Personal Injury Lawyer said the motion by Utica pursuant to New York Insurance Law 3420 to dismiss the third party claim and all the cross claims made against them is granted.

The request by Utica that the Court treat its motion for summary judgment as one and declare they are not responsible to indemnify Port-Land in the third-party action or defend and indemnify the plaintiff in the underlying action is granted.

Utica is ordered to serve a copy of this decision and notice of entry to all parties within 20 days of entry.

If you have sustained an injury and feel that you are entitled to a recovery settlement from the individual or company involved in the accident, Stephen Bilkis & Associates can help you determine your legal rights. The law offices of Stephen Bilkis & Associates can also help you with any other type of legal situation that you may find yourself in. Our offices are located throughout the metropolitan area of New York and you may contact us for a free consultation at any time.

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