News & Blog

Breeze National, Inc v. Century Surety Company

April 4, 2019 • Posted By • News

Breeze National, Inc v. Century Surety Company

N.Y.L.J.  – March 28, 2019        

            The First Department recently affirmed an Order by Judge George Silver that had granted Breeze’s motion for declaration that Century was obligated to provide insurance coverage to Breeze in the underlying wrongful death action.  Our firm had represented Breeze in the underlying action, which, for Breeze, was successfully resolved in 2018.  (The decedent had been a Breeze employee who fell through a window opening, which we maintained had been negligently left unprotected).

 

            “The language found in Century’s additional insured endorsement, in which Century agreed to afford plaintiff Breeze National, Inc. (Breeze) coverage as an additional insured only with respect to liability “caused, in whole or in party, by” its named insured ACT Abatement Corporation’s (ACT) acts or omissions, applies to injury proximately caused by the named insured (Burlington Ins. Co. v. NYC Tr. Auth., 29 NY3d 313, 317 [2017].  Century’s argument that ACT has never been adjudicated as negligent, and had no control over the means and methods of Wilk’s work is misplaced, as the phrase “caused, in whole or in part, by” does not “compel the conclusion that the endorsement incorporates a negligence requirement, but simply means more than “but for” causation (id. At 324).  The act of window removal, combined with the failure to guard the windows, was sufficient to establish proximate causation.  Thus, Century must defend Breeze in the underlying action”.

 

            Not surprisingly, because this is a portion we had espoused for years, we believe this decision to be prudent and correct.  It will hopefully bring to a conclusion all litigation associated with the unfortunate death of the decedent.