—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: This insurance coverage dispute is secondary to litigation arising out' of an accident in which two employees of defendant Skibeck Pipeline Co., Inc. (Skibeck) were injured while working on a construction project for plaintiff, Niagara Mohawk Power Corporation (Niagara Mohawk). Defendants Aetna Casualty & Surety Company of America, Farmington Casualty Company and Aetna Casualty & Surety Company (collectively Aetna) defended both in the
Aetna settled the underlying litigation by agreeing to pay one injured employee $2,000,000 and the other $1,100,000. Of the total settlement, Aetna determined that $1,500,000 would be allocated against the OPL policy, thereby exhausting its aggregate limit. The remainder, $1,600,000, was allocated against the CGL policy.
Niagara Mohawk commenced this action аgainst Skibeck and Aetna. As against Aetna, Niagara Mohawk alleges that the exhaustion or depletiоn of coverage under its OPL policy leaves it without defense or indemnification with regard to various other adverse claims arising during the policy period. Niagara Mohawk contends that it is entitled to havе the OPL policy “replenished” and to have the settlement charged in its entirety against the CGL policy, under which Niagara Mohawk claims to be an additional insured. Conversely, as against Ski-beck, it alleges that, if Niаgara Mohawk is not determined to be an additional insured under the CGL policy, then Skibeck breached its contract to procure insurance coverage for Niagara Mohawk. Skibeck commenced a third-party action against The Whittingham Agency, Inc. (Whittingham), the agent of Aetna, to which Skibeck had direсted its request that Niagara Mohawk be named as an additional insured under the CGL policy. Whittingham had issued a certificate of insurance designating Niagara Mohawk as an additional insured under the CGL policy for thе policy period during which the accident occurred, but just prior to the accident had issued another certificate of insurance that mistakenly omitted that designation. Whittingham commenced a fourth-party action against Aetna asserting the same theory' as alleged by Niagara Mohawk against Aetna, i.e., that Niagara Mohawk is an additional insured under the CGL policy.
Aetna, as defendant and fourth-party dеfendant, and Ski-beck, as defendant, appeal from a judgment granting the motion of Niagara Mohawk аnd the cross motion of Whittingham for summary judgment and denying Aetna’s cross motion for
We conclude that the court properly declared that Niagara Mohawk is an additional insured under the CGL рolicy. The undisputed proof on this record is that neither Whittingham nor Skibeck intended that Niagara Mohawk be deleted as an additional insured under the CGL policy; rather, the designation of Niagara Mohawk as аn additional insured under that policy was omitted through Whittingham’s clerical error. Further, given the uncontroverted proof that Whittingham acted within the scope of its actual or apparent authority in adding Niagara Mohawk as an additional insured, we conclude that Aetna was bound by Whittingham’s actions in issuing the certificаte of insurance designating Niagara Mohawk as an additional insured (see, Lenox Realty v Excelsior Ins. Co.,
The record, however, is inadequаte to determine whether Aetna correctly allocated Niagara Mohawk’s liability in the underlying aсtion entirely against the CGL policy rather than ratably or equally between the CGL policy and the OPL policy. Thus, we modify the judgment by deleting the word “all” from the penultimate decretal paragraph and by vacating the last decretal paragraph. (Appeals from Judgment of Supreme