Robert Nobel and Eric Suben Prevail in First Department and Coverage Action Seeking Additional Insured Status is Dismissed
June 9, 2009

HAWTHORNE, NEW YORK - TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP congratulates Robert Nobel and Eric Suben on their victory in West 64th Street, LLC, et al. v. AXIS U.S. Insurance, et al., where plaintiffs claimed that they qualified as an additional insureds under a primary general liability policy issued by AXIS to the injured party's employer.

Upon receipt of the coverage action claiming additional insured status under the AXIS policy, a pre-answer motion to dismiss based upon documentary evidence was promptly filed on behalf of the insurer. Such motion was based upon the fact that additional insured coverage was only triggered under the AXIS policy where AXIS' named insured was required by written contract to procure insurance naming another entity as an additional insured and there was no such requirement in the contract entered into by AXIS' named insured. Although plaintiffs sought to rely upon a contractual indemnification provision and a certificate of insurance to support their claim for coverage, the trial court (Kapnick, J.) agreed with the TLS&S attorneys and found that such was insufficient to confer coverage. The trial judge also rejected the plaintiffs' argument that the motion was premature because no discovery had been conducted and rejected plaintiffs' efforts to create an ambiguity in the policy based upon a typographical error on the cover sheet to the additional insured endorsement.

On appeal, plaintiffs argued, among other things, that the trial judge erred because she converted the pre-answer motion to dismiss into a motion for summary judgment without providing the requisite notice to the parties. The First Department was not persuaded by this procedural argument and affirmed the trial court's decision.