American Empire Surplus Lines Insurance Company v. Colony Insurance Company, 1:16-cv-07946

Colony issued an Owners and Contractors Protective (OCP) policy to NYCHA for 3/14/14–3/14/15; American Empire issued secondary coverage for the same period.
Three New York state personal-injury suits were brought by employees of Technico, a contractor hired by NYCHA.
American Empire brought this federal declaratory action seeking a ruling that Colony’s OCP policy is primary and that no exclusion precludes coverage, and American Empire has been defending the suits.
The OCP policy’s Insuring Agreement limits coverage to bodily injury caused by operations performed for NYCHA by the “contractor” designated in the Declarations (Technico).
An Endorsement excludes coverage for bodily injury “sustained by any contractor, subcontractor or independent contractor or any of their ‘employees’,” and conditions coverage for subcontractors on NYCHA obtaining certificates of insurance.
The parties cross-moved for summary judgment; the key legal question was whether the phrase “any contractor” in the exclusion includes the designated contractor (Technico).

Issue	Plaintiff's Argument (American Empire)	Defendant's Argument (Colony)	Held
Whether the OCP exclusion for "any contractor" excludes the designated contractor (Technico)	The quoted defined term "contractor" (the designated contractor) should be treated differently and thus not fall within the broad phrase "any contractor"	"Any contractor" is broad and plainly includes Technico; when the parties intended a distinction they expressly made one elsewhere in the policy	The Court held the exclusion covers Technico; "any contractor" includes the designated contractor, so the policy does not cover claims by Technico's employees
Whether American Empire is entitled to summary judgment and its dependent claims survive	Seeks summary judgment that Colony's OCP provides primary coverage and no exclusion applies	Colony seeks summary judgment enforcing the exclusion and denying coverage	Court denied American Empire’s motion, granted Colony’s cross-motion, dismissed American Empire’s remaining counts and terminated the action

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting principles)
Anderson v. Liberty Lobby, 477 U.S. 242 (materiality standard for summary judgment)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must show more than metaphysical doubt)
Scott v. Harris, 550 U.S. 372 (courts may credit incontrovertible evidence on summary judgment)
Dickerson v. Napolitano, 604 F.3d 732 (construe evidence for nonmoving party)
Wright v. Goord, 554 F.3d 255 (opposing party must show genuine issue for trial)
Hicks v. Baines, 593 F.3d 159 (mere speculation insufficient to defeat summary judgment)
Porter v. Quarantillo, 722 F.3d 94 (only admissible evidence considered on summary judgment)
Zellner v. Summerlin, 494 F.3d 344 (incontrovertible evidence may discredit opposing version)
Alexander & Alexander Servs., Inc. v. These Certain Underwriters at Lloyd’s, 136 F.3d 82 (insurance contract interpretation is a question of law)
Seiden Assocs., Inc. v. ANC Holding, Inc., 959 F.2d 425 (ambiguity is a question of law on summary judgment)
Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208 (start with policy language to determine coverage)
Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33 (clear policy language enforced as written)
Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304 (insurer bears burden to prove applicability of exclusions)