Bruns v State of New York

[*1] Bruns v State of New York 2006 NY Slip Op 52130(U) [13 Misc 3d 1235(A)] Decided on September 28, 2006 Ct Cl Lack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 28, 2006
Ct Cl

John Bruns and Deborah Bruns, Claimants,

against

The State of New York, Defendant.



109516



For Claimants:

Michael F. Perotta, Esq.

For Defendant:

Eliot Spitzer, New York State Attorney General

By: Todd A. Schall, Assistant Attorney General

For Third-Party Defendant:

Melito & Adolfsen, P.C.

By: S. Dwight Stephens, Esq. and

Ignatius John Melito, Esq.

James J. Lack, J.

This is a claim brought by John Bruns (hereinafter "claimant") based upon the negligence of the State of New York (hereinafter "State"). The claim is based upon an incident which [*2]occurred on June 28, 2002, at the Jones Beach Marine Theater (also known as the Tommy Hilfiger Theater) at Jones Beach State Park, Wantagh, New York. Claimant was descending an antenna which he had been working on at the theater, when he fell. The claim of Deborah Bruns is derivative in nature.

Claimant worked for Island Mobile Communications, Antenna & Tower, Inc. (hereinafter "Island"). Island was a sub-contractor to Nextel, which in turn was a contractor and licensee to Crown Communication of New York, Inc. (hereinafter "Crown"). Pursuant to a Tower License Agreement (hereinafter "the agreement") between Crown and Nextel, Nextel would maintain the antenna tower at Jones Beach Theater. The agreement provides for Nextel to purchase liability insurance.

Defendant began a third-party action against Zurich North America (hereinafter "Zurich") the insurance company from which Nextel purchased a liability policy. Defendant now moves, pursuant to Court of Claims Act §9(9-a), for an order declaring Zurich must provide the State with a defense in the underlying action[FN1]. According to the State, Nextel by agreement was to purchase and maintain an insurance policy naming the State as an additional insured party. The State provides a copy of the agreement as a supporting exhibit (Exhibit A). In addition, the State furnished a copy of a certificate of insurance, but not the underlying insurance policy, from Marsh USA, Inc., an insurance broker, which certificate names the State as an additional insured.

Zurich opposes the motion and cross-moves to dismiss the third-party action[FN2]. Zurich argues that the State is not covered as an additional insured party in the policy which Nextel purchased. Zurich provides a copy of the insurance policy purchased by Nextel (Exhibit 1). Zurich states that while the State is not specifically named as an additional insured, it could have still been covered if the agreement between Nextel and Crown required it. Zurich argues that the agreement does not require Nextel to purchase liability insurance naming the State as an additional insured.

In Tribeca Broadway Associates, LLC v Mount Vernon Fire Ins. Co., 5 AD3d 198, a similar situation occurred. A certificate of insurance existed which named plaintiff as an additional insured but the insurance policy did not contain plaintiff as an additional insured [*3]party. The court held a "certificate of insurance is only evidence of a carrier's intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists" (at p. 200).

A party claiming insurance coverage has the burden of proving that such coverage actually exists (Moleon v Kreisler Borg Florman Gen. Constr. Co., 304 AD2d 337).

After examining the documents offered by the parties, the State has failed to meet its burden of proving insurance coverage exists for it. The certificate of insurance, as stated above, is not proof that insurance coverage exists. Clearly, in examining the insurance policy, the State is not an additional named insured. However, as indicated by Zurich, that does not preclude the State from being an additional named insured. The insurance policy (Exhibit 1) states that if any contract requires any other party to be an additional insured then the Zurich policy would cover it. In examining the agreement between Nextel and Crown, there is no requirement for the State to be named as an additional insured. Paragraph 19 of the agreement only requires that the licensor (Crown) be named as an additional insured. There is no requirement that the State be named as an additional insured.[FN3] As nothing in the agreement required the State to be named as an additional insured, the policy does not cover the State as an "automatic additional insured".

Based upon the foregoing, the State's motion for a declaratory judgment is denied and Zurich's cross-motion to dismiss the third-party action is granted.

JAMES J. LACK

Judge of the Court of Claims

Hauppauge, New York

September 28, 2006 Footnotes

Footnote 1:The following papers have been read and considered on defendant/third-party claimant's motion: Notice of Motion dated March 15, 2006 and filed March 20, 2006; Affirmation in Support of Todd A. Schall, Esq. with annexed Exhibits A-C dated March 15, 2006 and filed March 20, 2006.

Footnote 2:The following papers have been read and considered on third-party defendant's motion: Notice of Cross-Motion dated April 5, 2006 and filed April 7, 2006; Affidavit in Opposition to New York State's Summary Judgment Motion and in Support of Cross-Motion for Summary Judgment of S. Dwight Stephens, Esq. with annexed Exhibit sworn to April 5, 2006 and filed April 7, 2006; Affirmation in Further Support of Motion and in Opposition to Cross-Motion of Todd A. Schall, Esq. dated May 17, 2006 and filed May 22, 2006; Reply Affidavit in Support of Cross-Motion for Summary Judgment of S. Dwight Stephens sworn to May 22, 2006 and filed May 25, 2006.

Footnote 3:While there is no requirement for Nextel to purchase insurance naming the State as an additional insured, Nextel still has a duty to defend and indemnify the State itself, according to paragraph 20 of the agreement.