Selective wins coverage dispute over construction accident
A federal appeals court on Tuesday affirmed a lower court ruling on behalf of Selective Insurance Group Inc. in a coverage dispute with Amerisure Insurance Co. over a construction accident.
In 2015, an employee of Baldwinsville, New York-based C&D Laface Construction Inc., a subcontractor on construction of a movie theater in Camillus, New York, was seriously injured in an incident involving a forklift truck being driven by one of his co-workers, according to court papers in Amerisure Insurance Co., Amerisure Mutual Insurance Co. v. Selective Insurance Group Inc., DBA Selective Insurance Co. of America. The project’s contractor was Midlothian, Virginia-based Eilerson Development Corp.
Under provisions in the general contract and subcontract, EDC had obtained a commercial general liability policy and an umbrella policy from Farmington Hills, Michigan-based Amerisure and C&D had obtained a CGL policy and an umbrella policy from Branchville, New Jersey-based Selective.
A lawsuit filed by the worker and his wife against EDC and the property owners was settled. Litigation then ensued as to the additional insured status of the owners and the priority of coverage between the Amerisure CGL and Selective umbrella policies.
The U.S. District Court in Albany, New York, ruled in Selective’s favor, holding that the property’s owners are not additional insureds under the Selective policies and that the Amerisure policy is primary to the Selective umbrella policy as to claims against Eilerson.
The ruling was affirmed by a three-judge appeals court panel. Because C&D “did not assume EDC’s obligation to name the Owners as additional insureds, the Owners are not traditional insureds under the Selective policies,” it said.
The panel also held “that a traditional priority of coverage analysis should prevail here,” which “plainly shows that the Amerisure CG policy is primary to the Selective umbrella policy.”
Attorneys in the case did not respond to requests for comment.
A federal appeals court held in February that Selective could deny coverage based on a policy’s pollution exclusion even though it did not raise that issue in its original denial letter.