Monday, March 22, 2010

Summary Judgment Properly Denied on Alleged Oral Agreement to Name Property Owner as Additional Insured

Pyramid Brokerage Co., Inc. v. Zurich Am. Ins. Co.
(4th Dept., decided 3/19/2010)

There were two actions in this matter, the first of which resulted in a declaration that plaintiff was not an additional insured under the Zurich policy and that Zurich had no duty to defend or indemnify plaintiff in an underlying Labor Law action (White v General Motors Corp., 38 AD3d 1193).  This appeal concerned the second action, in which plaintiff sued various contractors and subcontractors for their alleged breach of contract, negligent misrepresentation and intentional misrepresentation in relation to additional insured coverage plaintiff contended the defendants were obligated to procure for it.

On the parties' appeals from their various motions and cross motions for summary judgment, the Fourth Department held:
  • contradicting affidavit and deposition testimony from plaintiff's site project manager and defendants' employees created a question of fact precluding summary judgment on the alleged existence of the defendants' oral agreement to name plaintiff as an additional insured under their commercial general liability policy;

  • as it sounded in fraud, plaintiff's intentional misrepresentation cause of action was governed by the six-year statute of limitations set forth in CPLR § 213(8) and accrued in January 2003, when Zurich disclaimed coverage on the ground that plaintiff was not named as an additional insured under the defendants' policy; and

  • the lower court properly concluded as a matter of law that, if an oral agreement existed, defendants breached that agreement and plaintiff was damaged thereby, because neither in opposition to plaintiff's  motion nor in support of their own cross motion did defendants address the alleged breach of contract in the event that an oral agreement was made, and they also did not address the specified damages.

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