NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 13, 2012
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5458-08.
Daniel B. McMeen argued the cause for appellants (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, Jr., P.C., attorneys; Philip A. Garubo, of counsel; Mr. Garubo and Mr. McMeen, on the brief).
Dean R. Lospinoso argued the cause for respondent Harleysville Insurance Group (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Lance J. Kalik, of counsel and on the brief; Mr. Lospinoso, on the brief).
Peter A. Gaudioso argued the cause for respondent Air Joy Heating and Cooling, Inc. (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Gaudioso, of counsel and on the brief; Joseph G. Fuoco, on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Third-party plaintiffs Tishman Construction Corporation of New Jersey (Tishman) and Paramount Homes at Asbury Urban Renewal, LLC, (Paramount) appeal from a December 30, 2011 order granting summary judgment in favor of third-party defendant Harleysville Insurance Company of New Jersey (Harleysville). For the reasons that follow, we affirm.
The underlying personal injury action arose from a December 19, 2006 construction site accident involving plaintiff Bobby Robinson, a union worker who fell from a ladder. At the time of the accident, Paramount, the owner of the construction project, had entered into a Construction Management Agreement (the Agreement) with Tishman. Pursuant to the Agreement, Tishman provided Paramount with construction management services for the project and additional insured coverage. The Agreement also stated: "Any Umbrella/Excess Liability Policy issued to Tishman during the term of this project is to afford essentially the same coverage as Additional Insured as the primary policy."
In accordance with the Agreement, Tishman obtained a commercial general liability policy issued by National Union Fire Insurance Company of Pittsburgh (National Union), number 163-58-86, effective January 1, 2006 through January 1, 2007. National Union agreed to insure Paramount as an additional insured in an endorsement attached to the policy. National Union also issued Tishman a workers' compensation policy for the same time period. The National Union policy included the following provision:
We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. . . . We may, at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.
Additionally, the National Union policy stated:
This insurance is excess over any of the other insurance whether primary, excess, contingent or on any other basis:
(1) Unless such insurance is specifically purchased to apply as excess of this policy, or
(2) you are obligated by contract to provide primary insurance.
Tishman also entered into a subcontractor agreement dated August 17, 2005, with Air Joy Heating and Cooling, Inc. (Air Joy) for heating, air conditioning, and ventilation work at the project site. The contract between Tishman and Air Joy specified:
Unless otherwise provided for by the attached Insurance Rider, prior to commencement of any work under this contract, and until completion and final acceptance of the Work, the Contractor and each and every subcontractor shall, at its own expense, maintain the following Insurance on its own behalf and for the protection of the Owner, Construction Manager and all other indemnities named in this Contract:
a. Comprehensive General Liability
b. Worker's Compensation
c. Comprehensive Automobile ...