ADDITIONAL CASES Builders Choice of New York, Inc. d/b/a Upstate Roofing And Siding, Third-Party Plaintiff v. Evanston Insurance Company, Third-Party Defendant OPINION & ORDER Plaintiff Admiral Insurance Company (“Plaintiff” or “Admiral”) brings this action against Defendant Builders Choice of New York, Inc. D/B/A Upstate Roofing and Siding (“Defendant,” “Third-Party Plaintiff,” or “Builders Choice”) seeking declaratory judgment that Admiral has no duty to defend or indemnify Builders Choice and may withdraw the defense it provided in an underlying state court action. Builders Choice asserts counterclaims for breach of contract and a declaratory judgment that Admiral must defend and indemnify Builders Choice. Third-Party Plaintiff Builders Choice brings an action against Third-Party Defendant Evanston Insurance Company (“Third-Party Defendant” or “Evanston”) for a declaratory judgment that Evanston must defend and indemnify Builders Choice in the same underlying state court action. Presently before the Court are Admiral’s, Builders Choice’s, and Evanston’s motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court (1) grants Builders Choice’s motion and denies Admiral’s motion in the initial action and (2) grants Evanston’s motion and denies Builders Choice’s motion in the third-party action. BACKGROUND The following facts are taken from the parties’ Rule 56.1 statements, declarations, and exhibits,1 and are not in dispute, except where noted. I. Factual Background A. The Admiral Insurance Policy Plaintiff Admiral Insurance Company (“Admiral”) issued an insurance policy to Builders Choice of New York, Inc. d/b/a Upstate Roofing and Siding (“Builders Choice”) for the policy period January 15, 2020 to January 15, 2021 (the “Admiral Policy”). (ECF No. 81, Admiral’s Rule 56.1 Statement “Pl. 56.1″ 1.) The Admiral Policy provides that Admiral “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which [the Admiral Policy] applies.” (Id. 2 (citing Pl. Ex. H).) The Admiral Policy also includes an endorsement entitled “NO COVERAGE APPLIES IF CONTRACTOR CONDITIONS NOT MET” (the “Contractor Conditions Endorsement”). The Contractor Conditions Endorsement states, in relevant part: As a condition precedent to any rights the insured may have under this Policy, the insured must comply with all of the conditions enumerated below. The insured agrees that we need not demonstrate any prejudice to us as a result of the insured’s failure to comply with any of the below conditions in order to enforce those conditions precedent to coverage. If prior to the commencement of any work, the insured fails to comply with the below conditions, any claim in which a “contractor” whose work directly or indirectly gives rises to the claim will not be payable under this Policy. We will have no obligation to either defend or indemnify the insured for any claims or legal actions brought against any insured. The insured hereby warrants and agrees that any “contractor” has complied with all of the following conditions prior to the commencement of any work performed: (1) The “contractor” has signed and executed an agreement with the insured which contains the following provisions: (a) a hold harmless agreement indemnifying the insured, to the fullest extent permitted by law, against all losses arising out of the work performed by or on behalf of any such “contractor”, including all expenses and legal fees incurred to defend claims alleging such losses; and (b) a requirement for the “contractor” to name the insured as an Additional Insured under their Commercial General Liability policy; (2) The “contractor” has maintained “adequate insurance”; (3) The “contractor” has provided the insured with current Certificates of Insurance evidencing Commercial General Liability and Workers’ Compensation and Employer’s Liability coverage; and (4) All documents required must be kept on file and made available at our request. (Id. 3 (citing Pl. Ex. H).) B. Exterior Pro Builders and the Evanston Policy On or about January 1, 2020, Builders Choice, a roofing and siding company, retained Exterior Pro Builders (“Exterior Pro”), to perform roofing and siding work for a new condominium site (the “Site”). (Pl. 56.1
5-6; ECF No. 91, Evanston’s Rule 56.1 Statement “TPD 56.1″
