In Harleysville Insurance Company v. Travelers Insurance Company, 38 A.D.3d 1364, 831 N.Y.S.2d 625, 2007 NY Slip Op 2378 (4th Dept. 2007), Savarino Construction Services, Inc. ("Savorino") entered into a subcontract with W.C. Roberson Plumbing & Construction Corp. ("Roberson").
Pursuant to their contract, Savarino was added as an additional insured to Roberson's commercial general liability policy, issued by Harleysville.
Savorino was named insured on a commercial general liability policy issued by Travelers. When an employee of Roberson commenced a personal injury action against Savorino, Harleysville provided a defense, and Savorino ultimately settled with the Roberson employee.
Harleysville subsequently commenced an action against Travelers, arguing that the latter was obligated to share equally in the defense costs and settlement, relying on the fact that both policies contained provisions stating that they were excess of any other insurance policy in which the named insured is listed as an additional insured.
The Appellate Division affirmed the trial court's ruling that Travelers was only obligated to provide coverage in excess of Harleysville.
The Court reasoned that the "other insurance" clauses in each policy did not "cancel each other out" because only the "other insurance" clause in the Travelers policy was implicated (id. at 2) ("Savarino is added as an additional insured on Harleysville's primary policy, and thus the excess clause is triggered in the Travelers policy but not in "Harleysville's policy.").