Berkley Ins. Co. v. Prime Ins. Co.

ADDITIONAL CASES Prime Insurance Company, Third-Party Plaintiff v. Extreme Residential Corp., Extreme Construction, Inc., Atlantic Crane LLC, Rockaway Beach Blvd. Construction Co., LLC, Benjamin Beechwood Tides 2, LLC, Benjamin Beechwood Ocean Way, LLC, Marta Martins as Personal Representative of the Estate of Jose Martins, deceased, Marta Martins, and Iago Martins, State Insurance Fund and Averne by the Sea, LLC, Third-Party Defendants MEMORANDUM AND ORDER The parties to this declaratory judgment action move for partial summary judgment. For the reasons stated below, the motions are granted in part and denied in part. BACKGROUND Plaintiff Berkley Insurance Company (“Berkley”) commenced this declaratory judgment action on May 19, 2020 against defendant Prime Insurance Company (“Prime”). (Complaint, filed May 19, 2020, Dkt. No. 1.) The action arises out of an insurance dispute related to an underlying personal injury action (“underlying action”) brought by the Estate of Jose Martins, Jose Martins’ spouse, Marta Martins, and Jose Martins’ adult son, Iago Martins (“underlying plaintiffs”) against several commercial entities involved in the management of a residential construction project: Averne By the Sea — Tides Project (“Tides Project”). (Id. 1.) The alleged facts of the underlying action are as follows: on July 30, 2019, two employees of Extreme Residential Corp. (“Extreme Residential”), Jose Martins and Iago Martins (together, the “Martins”), were involved in a workplace accident (“Martins’ accident”) at the Tides Project resulting in Jose Martins’ death and injury to Iago Martins. (Berkley’s Rule 56.1 Statement of Material Facts, dated Oct. 7, 2022 (“Berkley 56.1″), Dkt. No. 116-1, 11.) The two men were working on installing prefabricated panels throughout the building. (Id.) The underlying plaintiffs allege that, at the time of the accident, a panel being lifted by a crane leased from Atlantic Crane, LLC (“Atlantic Crane”) and operated by a worker employed by Atlantic Crane struck a previously installed panel, causing it to fall on the Martins. (Id.) This was the alleged cause of Jose Martins’ death and Iago Martins’ injuries. On July 31, 2019, the day after the accident, an email was sent by a Prime employee to numerous recipients acknowledging the incident. (Id. 27; see also Prime Email, attached as Ex. N to Berkley’s Memorandum in Support of its Motion for Partial Summary Judgment, dated July 31, 2019, Dkt. No. 116-17.) It is undisputed that Prime disclaimed coverage by letter dated March 11, 2020, two months after the initial suit was filed but nearly eight months after initial notice of the occurrence was given. (See Extreme Residential’s Rule 56.1 Statement of Material Facts, dated Oct. 7, 2022 (“Extreme 56.1″), Dkt. No. 114-1, 40; see also Prime’s Response to Extreme Residential’s Rule 56.1 Statement of Material Facts, dated Nov. 18, 2022 (“Prime Resp. to Extreme 56.1″), Dkt. No. 122, 40.) Operative at the time of the accident were two insurance policies: one issued by Prime (the “Prime Policy”), and another issued by Berkley (the “Berkley Policy”). The Named Insured on the Prime Policy is Extreme Residential, a subcontractor hired for the Tides Project. (Extreme 56.1 4; Prime Resp. to Extreme 56.1 4.) Named as additional insureds by way of Endorsements on the Prime policy are several of the commercial entities named as defendants in the underlying action, including Benjamin Beechwood Ocean Way, LLC (“Ocean Way”); Rockaway Beach Blvd. Construction Co. (“Rockaway”); and Averne By The Sea, LLC (“Averne”) (together, the “Beechwood Entities”). (Extreme 56.1 5; Prime Resp. to Extreme 56.1 5.) After Prime disclaimed coverage with respect to the underlying action, Berkley, which had issued a separate policy to the Beechwood Entities, undertook the defense of the Beechwood Entities. (Berkley 56.1 90.) Berkley initiated the instant action against Prime seeking a declaratory judgment on three issues: (1) that the Beechwood Entities are additional insureds under the Prime Policy with respect to the underlying action; (2) that Prime is obligated to defend the Beechwood Entities in the underlying action; and (3) that Prime is obligated to reimburse Berkley for its defense of the Beechwood Entities. Prime then filed a Third-Party Complaint seeking a declaratory judgment against Atlantic Crane, Extreme Residential, and the Beechwood Entities stating that Prime does not owe any of these entities a duty to defend and/or indemnify under the Prime Policy with respect to the underlying action. (See Third Party Complaint, filed July 29, 2020, Dkt. No. 20.) Extreme Residential, Atlantic Crane, and the Beechwood Entities asserted counterclaims against Prime related to Prime’s duty to defend them in the underlying action and damages to remedy Prime’s alleged breach of the Prime Policy, among other things. (See Answer to Amended Third Party Complaint and Counterclaim, filed Dec. 11, 2020, Dkt. No. 52; Answer to Amended Third Party Complaint and Counterclaim, filed Dec. 11, 2020, Dkt. No. 50; Answer to Amended Third Party Complaint and Counterclaim, filed Dec. 11, 2020, Dkt. No. 53.) The parties now move for summary judgment on these claims. STANDARD OF REVIEW Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is material where it “might affect the outcome of the suit under the governing law” and a dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party carries the initial burden of showing that there is no genuine dispute of material fact. Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). However, where the burden of proof at trial would fall on the non-moving party, the moving party may shift its initial burden by “point[ing] to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has satisfied its initial burden, the non-moving party must put forth specific facts showing that there is a genuine issue of material fact to be tried. Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996). While the court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of [the non-moving party], conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (citations and internal quotation marks omitted). If the moving party meets its burden in establishing the absence of any genuine issue of material fact, “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). The non-moving party must provide “affirmative evidence” from which a jury could return a verdict in its favor. Anderson, 477 U.S. at 257. “Conclusory allegations, conjecture, and speculation…are insufficient to create a genuine issue of fact.” Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)). Moreover, “[t]he ‘mere existence of a scintilla of evidence’ supporting the non-movant’s case is also insufficient to defeat summary judgment.” Id. (quoting Anderson, 477 U.S. at 252). LEGAL STANDARD I. Duty to Defend Under New York law, an insurer’s duty to defend arises “whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy.” Stein v. Northern Assur. Co. of Am., 617 F. App’x 28, 30 (2d Cir. 2015) (quoting Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435 (N.Y. 2002)). To ascertain whether an insurer has a duty to defend, the allegations in the complaint are compared to the wording of the insurance contract. See id. To avoid the duty to defend, an insurer must show that “there is no legal or factual allegation in the underlying complaint for which the insurer might eventually have to indemnify the insured.” Com. Union Assur. Co., PLC v. Oak Park Marina, Inc., 198 F.3d 55 (2d Cir. 1999). Where there is any ambiguity in the policy, the ambiguity is resolved against the insurer. See id. An insurer’s duty to defend is “exceedingly broad.” Euchner-USA, Inc. v. Hartford Cas. Ins. Co., 754 F.3d 136, 141 (2d Cir. 2014) (quoting Auto. Ins. Co. of Hartford v. Cook, 850 N.E.2d 1152, 1155 (N.Y. 2006)). “Generally, it is for the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage.” Consol. Edison Co. of New York v. Allstate Ins. Co., 774 N.E.2d 687, 690 (N.Y. 2002). Where the basis for relief from the duty to defend is a policy exclusion, “the insurer bears the heavy burden of demonstrating that the allegations of the complaint cast the pleadings wholly within that exclusion….” Stein, 617 F. App’x at 30 (quoting Frontier Insulation Contractors v. Merch. Mut. Ins. Co., 91 N.Y.2d 169 (N.Y. 1997)); see also Com. Union Assur. Co, 198 F.3d at 60-61 (“To show that an exclusion abrogates coverage, the insurer bears the burden of proving that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case. This burden is heavy, especially when the insurer is seeking to avoid the duty to defend.”) (internal quotation marks and citation omitted). Thus, the duty to defend holds unless the insurer can show that “‘the allegations, in toto, are subject to no other interpretation’” than the one put forth by the insurer. Technicon Elecs. Corp. v. Am. Home Assur. Co., 542 N.E.2d 1048, 1050 (N.Y. 1989) (quoting Int’l Paper Co. v. Cont’l Cas. Co., 320 N.E.2d 619 (N.Y. 1974)). The exceedingly broad duty to defend applies in full force not only to the named insured on the insurance policy but also to any additional insureds. See Regal Const. Corp. v. Nat’l Union Fire. Ins. Co. of Pittsburgh, PA, 930 N.E.2d 259, 261 (N.Y. 2010). II. Disclaimer of Coverage New York Insurance Law §3420(d) imposes an affirmative obligation on an insurer denying coverage to “disclaim liability or deny coverage for death or bodily injury arising out of…any…accident occurring within [New York].” Maxum Indem. Co. v. Oxford Interior Corp., 443 F. Supp. 3d 348, 351 (E.D.N.Y. 2020) (citing N.Y. INS. L. §3420(d)(2)). This notice must be provided in writing “as soon as is reasonably possible.” Id. An insurer’s duty to timely disclaim begins to run “from the time that the insurer has sufficient information to disclaim coverage in good faith.” United Specialty Ins. Co. v. Premier Contracting of New York, Inc., 375 F. Supp. 3d 389, 398 (S.D.N.Y. 2019) (citing Webster ex rel. Webster v. Mt. Vernon Fire Ins. Co., 368 F.3d 209, 216 (2d Cir. 2004)). This obligation applies not only to the named insured but also to additional insureds. See generally Maxum Indem. Co., 443 F. Supp. 3d 348. Though there is room for the insurer to conduct an investigation, the investigation must be “prompt, thorough, and diligent.” United Specialty Ins. Co., 375 F. Supp. 3d at 398 (quoting U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 369 F.3d 102, 107 (2d Cir. 2004)). Although reasonableness of delay is challenging to decide as a matter of law, the general rule is that “‘disclaimers beyond the 30-day point are generally treated as untimely’ unless the insurer establishes a suitable justification.” United Specialty Ins. Co., 375 F. Supp. 3d at 398 (quoting Century Sur. Co. v. EM Windsor Constr. Inc., No. 16 CV 4196, 2017 WL 5952706, at *9 (S.D.N.Y. Nov. 29, 2017)). An investigation can be grounds for justification, but the delay must nonetheless be reasonable. See id. “[W]hen a claim falls outside the scope of the policy’s definition of coverage,” no 3420(d) disclaimer is required. Id. Imposing a requirement to disclaim where no coverage existed in the first place would “create coverage where it never existed.” Id. However, a timely disclaimer is required where “a claim falls within the coverage terms but is denied based on a policy exclusion.” Markevics v. Liberty Mut. Ins. Co., 97 N.Y.2d 646, 648-49 (2001). “Failure to provide a Section 3420(d) disclaimer precludes denial of coverage based on a policy exclusion.” Britt v. Gen. Star Indem. Co., 494 F. App’x 151, 152-53 (2d Cir. 2012). DISCUSSION I. Extreme Residential and Prime’s Cross-Motions for Summary Judgment Extreme Residential moves for partial summary judgment declaring that (1) Prime must defend Extreme Residential in the underlying action;¹ (2) Prime is statutorily estopped under New York Insurance Law §3420(d)(2) from disclaiming coverage to Extreme Residential; and (3) Prime must pay the reasonable attorney’s fees and costs that Extreme Residential has incurred in this action. (Memorandum of Law of Extreme Residential, filed Oct. 7, 2022 (“Extreme Mem.”), Dkt. No. 114-2, at 1.) Prime moves for summary judgment declaring that (1) it has no duty to defend Extreme Residential under the Prime Policy; and (2) it has no duty to pay Extreme Residential’s attorney’s fees in this action. (Prime’s Memorandum of Law, filed Oct. 7, 2022 (“Prime Mem.”), Dkt. No. 115-2, at 15.) A. Prime’s Duty to Defend Extreme Residential Extreme Residential asserts that the claims alleged in the underlying action fall squarely within the “Bodily Injury” coverage provided under the Prime Policy and, therefore, that Prime has a duty to defend it in the underlying action.² (See Extreme Mem. at 7.) Prime acknowledges that it has been and continues to provide Extreme Residential with a courtesy defense in the underlying action despite having disclaimed coverage. (Prime’s Memorandum of Law in Opposition to Extreme Residential’s Motion for Summary Judgment, filed Nov. 18, 2022 (“Prime Mem. in Opp. to Extreme”), Dkt. No. 122-1, at 4.) Nevertheless, Prime argues that it has no continuing obligation to defend Extreme Residential in the underlying action. (Id.) Prime first argues that the underlying action is excluded from coverage on the grounds that some of the claims made against Extreme Residential do not pertain to “Bodily Injury,” as required by the policy. (Id. at 7.) Second, Prime argues that pursuant to Exclusions 2, 3(a), 3(b), 10, and 31, the claims in the underlying action fall outside of the scope of coverage. (Id. at 7-11.) Specifically, under Exclusion 2,³ Prime argues that the claims in the underlying action are excluded from coverage because they are for bodily injury that arose within the scope of Extreme Residential’s business or insured activities. (Id. at 7-8.) Under Exclusion 3(a),⁴ Prime argues that the claims are excluded from coverage because they are brought by two insureds, two employees of Extreme Residential who were hurt in the scope of employment, against another insured — Extreme Residential. (Id. at 8.) Under Exclusion 3(b),⁵ Prime argues that claims pertaining to negligence in maintaining a safe work environment are precluded from coverage. (Id. at 9.) Under Exclusion 4(a),⁶ Prime argues that the claims brought by the Beechwood Entities and Atlantic Crane would be excluded from coverage to whatever extent there is a finding that these parties are additional insureds or otherwise insured under the policy. (Id. at 9.) Under Exclusion 10,⁷ Prime argues that it is not obligated to pay damages — despite remaining silent on the duty to defend — for liabilities incurred under any contract or agreement, such as a rental agreement. (Id. at 9-10.) Under Exclusion 31,⁸ Prime argues that any claim for punitive, exemplary, or statutory penalties or sanctions, whether imposed by law or otherwise, are excluded from coverage. (Id. at 10.) In sum, Prime argues that these exclusions foreclose its duty to defend as to any of the claims asserted against Extreme Residential in the underlying action. As previously noted, an insurer’s duty to defend is exceedingly broad under New York law — it arises “whenever the underlying ‘complaint contains any facts or allegations which bring the claim even potentially within the protection purchased….’” BP Air Conditioning Corp. v. One Beacon Ins. Grp., 871 N.E.2d 1128, 1131-32 (N.Y. 2007) (emphasis added); see also Town of Massena, 779 N.E.2d at 167 (“it is immaterial that the complaint against the insured asserts additional claims which fall outside the policy’s general coverage or within its exclusory provisions.”). An “insured’s right to representation and the insurer’s correlative duty to defend suits, however groundless, false or fraudulent, are in a sense ‘litigation insurance’ expressly provided by the insurance contract.” Servidone Constr. Corp. v. Security Ins. Co. of Hartford, 477 N.E.2d 441, 444 (N.Y. 1985). Furthermore, “an insurer may be required to defend under the contract even though it may not be required to pay once the litigation has run its course.” Cook, 850 N.E.2d 1152 at 1155. Moreover, the burden on an insurer in avoiding its duty to defend based on an exclusion is heavy and requires a showing that a cited exclusion is “subject to no other reasonable interpretation” than the one put forth by the insurer. Barney Greengrass, Inc. v. Lumbermans Mut. Cas. Co., 445 F. App’x 441, 413 (2d Cir. 2011). Prime has failed to satisfy this heavy burden because, by the admission of Prime’s corporate designee, whether certain exclusions upon which Prime relied to deny coverage would apply “depends on the conclusion of the case and the facts” in the underlying action. (Extreme 56.1 42; see also Prime Resp. to Extreme 56.1 42.) The claims in the underlying action contain facts or allegations that bring them potentially within the Prime Policy and Prime has failed to demonstrate that the exclusions it relied on to disclaim coverage are subject to no other reasonable interpretation. Therefore, Prime has a duty to defend Extreme Residential in the underlying action and Extreme Residential’s motion for partial summary judgment on this claim is granted. Prime’s motion for summary judgment on this claim is denied. B. Coverage Disclaimer Under New York Insurance Law §3420 Extreme Residential asserts that Prime is barred from denying coverage because it failed to timely disclaim coverage pursuant to New York Insurance Law §3420(d)(2). (Extreme Mem. at 11.) Prime was notified of the Martins’ accident the day after it occurred. (Id.) However, Prime did not disclaim coverage to Extreme Residential until March 11, 2020, two months after the underlying action was filed and nearly eight months after receiving initial notice of the Martins’ accident. (Id.) Prime does not dispute this, but notes that it only learned of the underlying action on or about February 10, 2020, during its investigation of the Martins’ accident. (Prime’s Statement of Material Facts as to Extreme Residential, filed Oct. 7, 2022, Dkt. No. 115-1,

39, 40.) Prime contends that Section 3420 does not apply due to Extreme Residential’s failure to timely notify Prime of the third-party complaints filed against Extreme Residential in the underlying action and that even if Section 3420 applies, Prime’s disclaimer was timely. (Prime Mem. at 10.) In New York, an insurer is not obligated to disclaim coverage until an insured or additional insured provides notice of an accident or claim. U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F. Supp. 2d 348, 360 (E.D.N.Y. 2006) (citing Roofing Consultants, Inc. v. Scottsdale Ins. Co., 709 N.Y.S.2d 782 (4th Dep’t 2000)). “Neither notice provided by another insured nor the insurer’s actual knowledge of the claim satisfies the contractual obligation of an insured to give timely notice.” Roofing Consultants, 709 N.Y.S.2d 782. A notice provision in a policy is a condition precedent to coverage; absent a valid excuse, the failure to satisfy the notice requirement vitiates the policy. See Travelers Ins. Co. v. Volmar Constr. Co., Inc., 752 N.Y.S.2d 286 (1st Dep’t 2002) (citation omitted). Where there is no excuse or mitigating factor for not giving notice, the question of reasonable notice is a legal determination. See id. The written notice provision of the Prime Policy states that: 1. As an express condition precedent to coverage under this Policy, you must give us immediate written notice, and without prejudicing our rights, of any incident, event, occurrence, loss, or accident which might give rise to a Claim covered by this Policy. 2. You and any other involved Insured must: a. Immediately, and without prejudicing our rights, send us copies of any demands, notices, summonses, or legal papers received in connection with any Claim or Suit, and act in all diligence and prudence to resolve the Claim or Suit…. (Prime Policy at PRIME01291.) Prime asserts that Extreme Residential never notified Prime of the third-party complaints that were filed against it in the underlying action and that this failure renders Section 3420 inapplicable. (Prime Mem. in Opp. to Extreme at 9.) However, by September 6, 2019, Prime had received a report from Dennis Brady, Esq., defense counsel retained on behalf of Extreme Residential, summarizing the salient facts concerning the underlying loss. (Extreme Residential’s Memorandum of Law in Opposition to Prime Insurance Company’s Motion for Summary Judgment, filed Nov. 18, 2022 (“Extreme Mem. in Opp. to Prime”), Dkt. No. 128, at 18; see also Prime Claims Diary, attached as Ex. 11 to the Extreme Mem., dated Oct. 3, 2022, Dkt. No. 114-11, at 9.) There is no genuine dispute that Prime received notice of the Martins’ accident from Extreme Residential, as Prime’s Claim Diary clearly reflects receipt of the report from Extreme Residential’s counsel concerning the Martins’ accident. (See Prime Claims Diary at 9.) Therefore, Prime was subject to Section 3420′s timely disclaimer requirement. See Travelers Indem. Co. of Am. v. Estate of Zeygermakher ex rel. Sidon, 427 F. App’x 30, 32 (2d Cir. 2011) (“Our Court has held that an insurer’s obligation to disclaim as to an injured party arises when the injured party provides notice of the occurrence to the insurer.”) Nevertheless, Prime argues that, even if Section 3420 applies, Prime’s delay in disclaiming coverage is excused by its investigation. (Prime Mem. in Opp. to Extreme at 5-6.) Prime notes that its investigation was still ongoing at the time the underlying action was commenced and that Prime could not have known the basis for disclaiming coverage to Extreme Residential until claims were asserted against it. (Id. at 8.) However, as discussed above, although there is room for an insurer to conduct an investigation, the investigation must be prompt and the general rule is that “‘disclaimers beyond the 30-day point are generally treated as untimely’ unless the insurer establishes a suitable justification.” United Specialty Ins. Co., 375 F. Supp. 3d at 398 (citation omitted); see also First Fin. Ins. Co. v. Jetco Contracting Corp., 801 N.E.2d 835, 838 (N.Y. 2003) (finding the insurer’s 48-day delay in giving written notice of the disclaimer was unreasonable as a matter of law and noting that “the Appellate Division several times has found fixed periods of less than 48 days unreasonable as a matter of law.”). Prime issued its disclaimer of coverage to Extreme Residential on March 11, 2020 — approximately 224 days after Prime became aware of the Martins’ accident, 187 days after Extreme Residential’s counsel sent a report to Prime concerning the accident, 163 days after Prime had retained coverage counsel to assist in its evaluation of all potential claims, and thirty days after Prime allegedly learned of the underlying action. I find that Prime’s delay in disclaiming coverage to Extreme Residential is unreasonable as a matter of law, and grant summary judgment on this issue in favor of Extreme Residential. C. Attorney’s Fees and Costs Extreme Residential seeks fees and costs incurred in connection with defending against Prime’s third-party complaint. (Extreme Mem. at 13.) An insured who is “cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations,” and prevails on the merits, is entitled to attorney’s fees from the losing party. Mighty Midgets, Inc. v. Centennial Ins. Co., 389 N.E.2d 1080, 1085 (N.Y. 1979); see also U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 822 N.E.2d 777 (N.Y. 2004) (a prevailing insured cast in a defensive posture is entitled to attorney’s fees). An insured prevails on the merits where the court determines that the insurer has a duty to defend. Am. Auto. Ins. Co. v. Sec. Income Planners & Co., 847 F. Supp. 2d 454, 466 (E.D.N.Y. 2012). Prime asserts that Extreme Residential may not recover any attorney’s fees incurred in the instant action unless it is successful in its claim for coverage against Prime. (Prime Mem. in Opp. to Extreme at 15.) As discussed above, Prime has a duty to defend Extreme Residential in the underlying action. Therefore, Extreme Residential is entitled to attorney’s fees and costs incurred in connection with this action and summary judgment on this claim is granted in favor of Extreme Residential. Prime’s motion for summary judgment on this issue is denied. II. Prime and Berkley’s Cross-Motions for Summary Judgment Berkley moves for partial summary judgment declaring that Prime is obligated to defend the Beechwood Entities as additional insureds under the Prime Policy and that Prime is obligated to reimburse the defense costs incurred by Berkley in connection with the underlying action. (Berkley’s Memorandum of Law, filed Oct. 7, 2022 (“Berkley Mem.”), Dkt. No. 116-2, at 1-3.) Prime moves for partial summary judgment against Berkley for a declaration that, because Extreme Residential would not be entitled to coverage on account of the exclusions to coverage, the Beechwood Entities are likewise not entitled to coverage under the Prime Policy and that Prime is not obligated to reimburse Berkley for amounts incurred in defending the Beechwood Entities in the underlying action. (Memorandum of Law in Support of Prime’s Motion for Summary Judgment, dated Oct. 7, 2022 (“Prime Mem. Against Berkley”), Dkt. No. 117-2, at 1.) A. Prime’s Duty to Defend the Beechwood Entities Berkley argues that the grant of additional insured coverage to the Beechwood Entities under the Prime Policy is triggered by the allegations in the underlying action and the Additional Insured Coverage provided by the Prime Policy. (Id. at 2.)⁹ Additionally, Berkley asserts that the allegations in the underlying action do not fall squarely within any of the exclusions cited by Prime to afford Prime relief from its obligation to provide additional insured coverage to the Beechwood Entities. (Id.) In determining whether one is an additional insured on an insurance policy, the language of the policy around the scheduling of additional insureds governs. See 140 Broadway Prop v. Schindler Elevator Co., 901 N.Y.S.2d 292 (2d Dep’t 2010) (“It is well settled that whether a third party is an additional insured under a policy is determined from the intention of the parties to the policy, as determined from the four corners of the policy itself.”) (internal quotes omitted). Because an insurance policy is a contract between an insurer and an insured, “the extent of coverage…is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage.” Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 855 N.Y.S.2d 459 (1st Dep’t 2008). The Additional Insured Endorsement provision of the Prime Policy states: The “Who is a [sic] Insured” provision of the Policy shall be amended to include the person or organization scheduled in this Endorsement as an Additional Insured for the limited purpose of liability arising from Your Work, as that term applies to the Insured only, and subject to all other terms and conditions of the Policy and this Endorsement. The coverage provided by this Endorsement only extends to cover the Additional Insured for allegations of liability based upon alleged, actionable conduct of the Insured and only to the extent the Insured would have been liable and coverage would have been afforded to the Insured under the terms and conditions of this Policy had such Claim been made against the Insured. (Prime Policy at PRIME01321.) Prime admits that the Prime Policy includes Additional Insured Endorsements naming Rockaway, Ocean Way, and Averne as additional insureds and that they qualify as additional insureds. (Prime Mem. Against Berkley at 6-7.) However, Prime maintains that Tides 2 and Benjamin Averne II, LLC (“Averne II”) are not entitled to coverage from Prime because they are not named in an Additional Insured Endorsement. (Id. at 7.) This assertion runs counter to the evidence, which shows that Daniel Tew, Prime’s Assistant Vice President of Underwriting, confirmed that Tides 2 and Averne II would be included as additional insureds under the Prime Policy. (See Email from Daniel Tew to Michael Marquis, attached as Ex. K to the Beechwood Entities’ Statement of Material Facts in Support of Their Motion for Partial Summary Judgment, filed Oct. 7, 2022, Dkt. No. 111-13; see also Beechwood Entities’ Statement of Material Facts in Support of Their Motion for Partial Summary Judgment, filed Oct. 7, 2022 (“Beechwood Entities 56.1″), Dkt. No. 111-1,