Court Addresses Insurers’ Dispute Over Which is Primary, Which is Excess

    The court considered cross-motions for summary judgment to determined which carrier was primary and which was excess for coverage of bodily injury. Travelers Indemn. Co. v. Hudson Excess Ins. Co., 2025 U.S. Dist. LEXIS 110298 (S.D. N. Y. June 10, 2025).

    21 West 86 LLC, the owner of a building, hired Masterpiece US Inc. to serve as a contractor on a construction project. Masterpiece hired Vici Interni Inc. as a subcontractor to perform demolition work, which included demolition of floors and walls. Two Vici employees, Henry Melendez and Jose David Artiga Lopez, sustained injuries when the floor beneath them gave way and they were struck by falling objects. As a result, they suffered bone fractures and various other physical and psychological injuries. 

    Melendez and Lopez filed suit against West and Masterpiece, alleging that their injuries were caused by West's and Masterpiece's failure to provide a safe work environment. Travelers Indemnity Company insuredMasterpiece. Hudson Excess Insurance Company insured Vici. Both the Hudson and Travelers policies named West as an additional insured. Travelers tendered to Hudson on behalf of of West and Masterpiece. The tender was not accepted. 

    Travelers sued Hudson seeking a declaratory judgment establishing that Hudson owed a duty to defend and indemnify West and Masterpiece in the underlying action, that Hudson's coverage obligations were primary, and that Travelers' coverage obligations were excess to Hudson's coverage obligations. Both parties moved for summary judgment. 

    The court first determined that Hudson had a duty to defend West and Masterpiece in the underlying action. Under a purchase order, Vici agreed to add West and Masterpiece as "additional insureds" on its Hudson policy. The policy provided coverage for those "additional insureds" for "bodily injury" that was "caused, in whole or in part," by Vici's "acts or omissions." The underlying case alleged the injuries were due to West, Masterpiece, and their subcontractors, including Vici, failing to abide by state labor laws and to provide a safe work environment. Because there was a reasonable basis on which Hudson might eventually be required to indemnify West and Masterpiece, Hudson had a duty to defend the underlying action.

    The court next found that Hudson's coverage obligations were primary and noncontributory. The purchase order stated that Vici was required to "purchase and maintain . . . commercial general liability (CGL) coverage", that West and Masterpiece were required to "be included as insureds on the CGL," and that the "coverage for the additional insureds shall apply as primary and noncontributing insurance before any other insurance or self-insurance." In turn, the Hudson policy provided that where Vici was "specifically required by a written contract to provide insurance that is primary and non-contributory and the written contract so requiring is executed by you before any 'occurrence' or offence," then "this insurance will be primarily and the other insurance will not contribute with this insurance." These provisions made clear that Hudson's coverage obligations were primarily and noncontributory. 

    Further the Other Insurance Provision in the Travelers policy stated the policy applied "in excess over any of the other insurance whether primary, excess, contingent or on any other basis, that is available to [Masterpiece] when [Masterpiece] is added as an additional insured under any other policy, including an umbrella or excess policy." Therefore, the Travelers policy was in excess of the Hudson policy.

    Finally, the court concluded that the indemnification issues was not ripe for adjudication.