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County of Hudson v. Selective Insurance Co.

June 20, 2000

COUNTY OF HUDSON,
PLAINTIFF-APPELLANT,
V.
SELECTIVE INSURANCE COMPANY,
DEFENDANT-RESPONDENT.



Before Judges Baime, Eichen and Wecker.

The opinion of the court was delivered by: Eichen, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2000

On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

This appeal requires us to construe the scope of an additional insured endorsement in a commercial general liability policy (the policy) which provides coverage for liability "arising out of 'your work.'" The policy was issued by defendant Selective Insurance Company (Selective) to Malpere Enterprises, Inc. (Malpere), a general contractor hired to perform work at the William Brennan Courthouse in Jersey City. The policy was required under a contract between the County of Hudson (the County) and Malpere for masonry restoration work at the courthouse.

The endorsement states in relevant part that the policy is amended to add the County as an additional insured "but only with respect to liability arising out of 'your work' for that insured by or for you" (the endorsement).

An employee of a subcontractor, while at the courthouse seeking information to prepare a bid, slipped and fell on a marble staircase. The employee sued the County, whereupon the County requested Selective to defend and indemnify it in accordance with the endorsement. Selective declined coverage on the ground that the injured employee was not engaged in the contractor's "work" when he fell. Thereafter, the employee obtained an $81,000 judgment against the County, *fn1 and the County instituted this action against Selective seeking indemnification.

On cross-motions for summary judgment filed by Selective and the County, the Law Division dismissed the County's complaint, concluding that there was no "substantial nexus" between the dangerous condition that caused the subcontractor's employee to fall and the contractor's "work" and that Selective properly declined to defend and indemnify the County under the endorsement.

The County appealed, contending that the Law Division misinterpreted the "arising out of 'your work'" language in the endorsement. We agree and reverse the summary judgment in favor of Selective.

I.

On July 23, 1992, Selman Cicen, an employee of All Jersey Seamless Company, fell on a slippery step on a marble staircase leading from the first floor to the basement of the William Brennan Courthouse in Jersey City and was seriously injured. Cicen was at the courthouse to obtain information for preparing an estimate for subcontracting services in furtherance of the restoration contract entered into between Malpere and the County on May 15, 1992. *fn2 The contract required Malpere to obtain commercial liability insurance. Article 7.3 of the "Specifications-General Provisions," which was made a part of the contract, reads, in pertinent part, as follows:

The Contractor shall obtain and keep in force during the term of the contract, public liability and property damage insurance in companies and in form to be approved by the County. Said insurance shall provide coverage to the Contractor, any subcontractor performing work provided by this Contractor, and the county. The County of Hudson, its officers, agents, servants, and employees as their interest may appear, shall be named as an additional insured on said policy insofar as the work and obligations performed under the Contract are concerned. The coverage so provided shall protect against claims for personal injuries, including accidental death, as well as claims for property damages which may arise from any act or omission of the County, the Contractor or the subcontractor or by anyone directly employed by either of them. (Emphasis added.)

Hence, Article 7.3 of the contract required Malpere to obtain public liability and property damage insurance and to include the County as an additional insured on the policy "insofar as the work and obligations performed under the Contract are concerned." The contract also envisioned the use of subcontractors by Malpere in the performance of its work for the County.

In furtherance of the contract, Malpere sought and obtained a commercial general liability policy from Selective in which the County was named as an additional ...


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