225 A.D.2d 304 | N.Y. App. Div. | 1996
Plaintiff, an employee of third-party defendant Lehrer McGovern Bovis, Inc. (LMB), was injured on October 8, 1990 when he tripped while walking across steel beams at a construction site owned by defendant St. Luke’s-Roosevelt Hospital Center. LMB, the construction manager for the project in question, contracted with Trinity Industries, Inc. (Trinity), to provide all labor and materials, etc., related to the fabrication and installation of the structural steel at the site. Trinity, in turn, subcontracted out a portion of the work required under its contract with LMB to the third-party plaintiff Atlas-Gem Erectors Co., Inc. (Atlas-Gem). The parties do not dispute that the accident occurred within Atlas-Gem’s work area at the site.
Pursuant to the terms of the contract between Atlas-Gem and Trinity, in addition to providing as complete indemnity as would be allowed under the law to, inter alia, LMB and Trinity, Atlas-Gem was required to procure a commercial general liability policy of insurance naming as additional insureds "the Owner [St. Luke’s-Roosevelt Hospital Center], Construction Manager [LMB], and Construction Managers’ Parent and affiliates, Fabricator [Trinity], and Fabricator’s Parent and affiliates [to the extent applicable]”. The contract also required that the policy contain a general waiver of subrogation. Atlas-Gem in fact purchased a comprehensive general liability policy from New York Marine and General Insurance Company.
While it is argued that Endorsement No. 4 should be read as an exclusion limiting coverage, and we have specifically rejected such an interpretation, any such ambiguity would be construed against the insurer in any event, and in this case, in favor of coverage (Consolidated Edison Co. v Hartford Ins. Co., supra, at 84; see, Cone v Nationwide Mut. Fire Ins. Co., 75 NY2d 747, 749). Moreover, had it been concluded' that LMB was not covered under the policy in question, Atlas-Gem would have been liable for failure to procure coverage pursuant to the terms of its contract with LMB (see, Morel v City of New York, 192 AD2d 428). Concur — Murphy, P. J., Sullivan, Rubin, Ross and Tom, JJ.