# The Travelers Indemnity Company v. Admiral Insurance Company

> District Court, E.D. New York · September 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10659458

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

The Travelers Indemnity Company,

Plaintiff,

-v- 2:22-cv-5670
(NJC) (SIL)
Admiral Insurance Company,

Defendant.

OPINION AND ORDER

NUSRAT J. CHOUDHURY, District Judge:
Plaintiff The Travelers Indemnity Company (“Travelers”) brings this action seeking a
declaration that Defendant Admiral Insurance Company (“Admiral”) is required to defend and
indemnify Haugland Energy Group LLC (“Haugland”) and PSEG Long Island LLC (“PSEG”) in
two underlying state court actions arising out of a motor vehicle accident. (Am. Compl., ECF
No. 16.) Travelers has moved for partial summary judgment, arguing that, as a matter of law,
Admiral has a duty to defend Haugland and PSEG as additional insureds under an Admiral
policy issued to Haugland’s subcontractor, 4 Cut Development LLC (“4 Cut”), and that such
coverage is primary to any coverage under the policy Travelers issued to Haugland. (Pl.’s Mot.,
ECF No. 28; Pl.’s Mem. ISO MSJ at 1, ECF No. 28-32.) Admiral has cross-moved for summary
judgment, arguing that it has no duty to defend or indemnify Haugland and PSEG. (Def.’s Mot.,
ECF No. 31; Def.’s Mem. ISO MSJ at 1, ECF No. 31-23.) Central to the resolution of the
parties’ cross-motions is the interpretation of two contracts: the Contract for FEMA 406 Hazard
Mitigation Program Construction Services (the “Prime Contract”) between Haugland and Long
Island Electric Utility Servco LLC (“LI Electric”) (Prime Contract, ECF No. 28-20 through 28-
23), and a subcontract between Haugland and 4 Cut (Subcontract, ECF No. 28-8 at 17–33).
For the following reasons, genuine questions of material fact preclude a determination as
to whether Haugland and PSEG are additional insureds under the Admiral policy issued to 4 Cut

and a determination as to whether PSEG is entitled to additional insured coverage under Section
14 of the Prime Contract. Additionally, Haugland is not entitled to additional insured coverage
under Section 14 of the Prime Contract. Accordingly, I deny Travelers’ partial Motion for
Summary Judgment (ECF No. 28) and grant in part and deny in part Admiral’s Motion for
Summary Judgment (ECF No. 31).
JURISDICTION
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§ 1332(a) because the Amended Complaint alleges that the amount in controversy exceeds
$75,000 and Travelers, a Connecticut corporation with a principal place of business in

Connecticut, and Admiral, a Delaware corporation with a principal place of business in Arizona,
are completely diverse in citizenship. (Am. Compl. ¶¶ 3–6.)
This Court also has subject matter jurisdiction over this action pursuant to the
Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. The DJA empowers federal courts to
declare the rights of parties in ripe cases or controversies by “providing that in a case of actual
controversy within its jurisdiction, any court of the United States may declare the rights and
other legal relations of any interested party seeking such declaration, whether or not further relief
is or could be sought.” Admiral Ins. Co. v. Niagara Transformer Corp., 57 F.4th 85, 92 (2d Cir.
2023).1 “With regards to litigation over insurance coverage in particular, the declaratory
judgment mechanism has become the paradigm for asserting jurisdiction despite future
contingencies that will determine whether a controversy ever actually becomes real.” Travelers
Prop. Cas. Co. of Am. v. Harleysville Worcester Ins. Co., 685 F. Supp. 3d 187, 201 (S.D.N.Y.

2023) (citing E.R. Squibb & Sons, Inc. v. Lloyd’s & Cos., 241 F.3d 154, 177 (2d Cir. 2001)).
This Court has jurisdiction over this action pursuant to the DJA because Travelers and Admiral
dispute Admiral’s obligation to defend and indemnify Haugland and PSEG as additional
insureds.
Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the accident giving rise to
the underlying state court actions took place in this judicial district.
BACKGROUND
The following facts are not in dispute, unless otherwise noted.

I. Long Island Lighting Company and PSEG Enter into the Operations Services
Agreement.
Following Hurricane Sandy, on December 13, 2013, Long Island Lighting Company (“LI
Lighting”) entered into an Amended and Restated Operations Services Agreement (“Operations
Services Agreement”) with PSEG, pursuant to which PSEG assumed the operation and
maintenance of LI Lighting’s power transmission and distribution system and facilities.
(Operations Services Agreement § 4.2(A), ECF No. 28-19.)2 The Operations Services

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
brackets, and citations.

2 Admiral disputes the admissibility of the Operations Services Agreement. (Def.’s Opp’n to
MSJ at 13–14.) For the reasons stated infra Discussion, Section IV.C, the document is
admissible.
Agreement states that PSEG is engaged “as an independent contractor (except where [PSEG] is
appointed as [LI Lighting’s] agent” and designates PSEG as LI Lighting’s agent:
(a) to enter into purchase, rental and other contracts on behalf of and for the
account of [LI Lighting] necessary or appropriate to properly operate and
maintain the [transmission and distribution (“T&D”)] System and to maintain the
records of [LI Lighting], and to make such additions and extensions (other than
those made pursuant to Section 4.2(A)(7)) hereof to the T&D System and (b) to
enter into certain customer related contracts under [LI Lighting’s] tariff, all as
may be required from time to time by [LI Lighting].
(Id. §§ 3.1(B), 4.15; ECF No. 28-19 at 18, 47.) 3
II. Haugland and LI Lighting Enter into the Prime Contract.
On September 23, 2015, LI Electric, acting as LI Lighting’s agent, entered into the Prime
Contract with Haugland. (Prime Contract, ECF No. 28-20 through 28-23.)4 Pursuant to the Prime
Contract, Haugland agreed to provide construction services to carry out mitigation measures to
avoid future storm damage. (Id., ECF No. 28-20 at 2; id. § 1.1, ECF No. 28-21 at 55.)5
Under Section 14 of the Prime Contract, Haugland is required to “procure and maintain . .
. Commercial General Liability insurance . . . including . . . Professional Liability providing
coverage for premises, bodily injury, [and] property damage . . . .” (Id. § 14.1.b, ECF No. 28-20
at 38.) This insurance must “be primary to any other insurance . . . .” (Id. § 14.1.j, ECF No. 28-
20 at 40.) The Prime Contract further requires that

3 Citations to the Operations Services Agreement refer to ECF pagination. Excerpts from the
parties’ submissions are reproduced here exactly as they appear in the original. Unless otherwise
noted, errors in spelling, punctuation or grammar will not be corrected or highlighted.

4 The Prime Contract is a lengthy document consisting of six attachments, described in this
Opinion, which Travelers filed in four separate filings located at ECF Nos. 28-20 through 28-23.
The divisions between each of the four filings are arbitrary. Accordingly, this Opinion cites to
the Prime Contract as one document and identifies the relevant section or page number and ECF
location.

5 Citations to the Prime Contract refer to ECF pagination.
[a]ll liability insurance policies shall name [LI Lighting and LI Electric], their
successors and assigns, as well as their agents, servants, representatives,
employees, shareholders, successors, and assigns, as additional insured on a
primary and non-contributory basis and [Haugland] shall maintain the required
coverage, naming the [LI Lighting and LI Electric] as well as their agents,
servants, representatives, employees, shareholders, successors, and assigns as an
additional insured, for a period of not less than three (3) years from the date the
Company accepts the Work. The following language should be used when
referencing the additional insured status: Long Island Lighting Company d/b/a
LIPA and Long Island Electric Utility Servco LLC, as well as their subsidiaries
and affiliates, and their respective successors and assigns shall be named as
additional insured.
(Id. § 14.3, ECF No. 28-20 at 40.) In other words, under the Prime Contract, Haugland is
required to maintain insurance for bodily and personal injury that is primary to any other
insurance and that names LI Lighting and LI Electric and their subsidiaries, affiliates,
successors, and assigns as additional insureds on a primary and non-contributory basis.
The Prime Contract identifies “Contract Documents”—six documents that along
with their attachments and exhibits “as a whole, constitute the entire agreement between
the Parties, all of which form one integrated agreement and arrangement for the
Contract.” (Id. at 2, ECF No. 28-20.)6

6 The Contract Documents include:
• Attachment 1: Government Requirements Addendum Supplementary Conditions
for Contracts pursuant to the Federal Emergency Management Agency
(“FEMA”);
• Attachment 2: Standards Set Forth in the Federal Common Grant Rule, at 44 CFR
Part 13 (Federal Emergency Management Agency (“FEMA”));
• Attachment 3: General Terms And Conditions For Furnishing Labor and Material
On A Lump Sum, Unit Price, Time And Materials, Or Cost Reimbursement
Basis;
• Attachment 4: Statement of Work for the FEMA 406 Hazard Mitigation Program
Construction Services;
III. Haugland and 4 Cut Enter into the Subcontract.
On September 17, 2018, Haugland subcontracted part of the work identified in the Prime
Contract to 4 Cut pursuant to the Subcontract. (Subcontract, ECF No. 28-8 at 17–33.)7 Under the
Subcontract, 4 Cut’s flaggers were required to have “Flagger Safety Training” and be “provided .
. . with all required PPE, Stop/Slow signs and 2-way radio’s.” (Id. at 19.) The Subcontract also
provides that “the Prime Contract in its entirety is incorporated by reference and made part of
this Subcontract as though set forth at length . . . .” (Id. § 1.1 at 17.) Moreover, the Subcontract

states that 4 Cut:
has carefully examined all documents and plans comprising the Prime Contract
and is thoroughly familiar with each of them, and it is expressly agreed and
understood that the Prime Contract shall be considered to be a part of this
Subcontract in all respects. [4 Cut] is bound unto [Haugland] by the terms of said
Contract Documents and will conform to and comply with it and assume toward
[Haugland] all the obligations and responsibilities that [Haugland] assumes to
Owner in and by the Prime Contract with respect to all aspects of the work called
for herein and with respect to all obligations, duties, conditions and requirements
related to the entire fulfillment and performance of the Prime Contract. It is
expressly agreed and understood that the Prime Contract shall be considered to be
a part of this Subcontract in all respects.
(Id.) The Subcontract specifically states that 4 Cut “agrees to be bound by all the terms and
provisions of the Prime Contract, including but not limited to the administrative and procedural
provision, [and] dispute resolution provisions contained in the Contract Documents . . . .” (Id.
§ 1.2 at 17.) Finally, the Subcontract provides that “[i]n the event of any conflict between the

• Attachment 5: Pricing Sheet for FEMA 406 Hazard Mitigation Program
Construction Services; and
• Attachment 6: Seller’s Certificate of Insurance, if applicable.
(Id. at 3, ECF No. 28-20.)

7 Citations to the Subcontract refer to ECF pagination.
provisions of this Subcontract and the Prime Contract, the provisions of this Subcontract shall
govern.” (Id. § 1.3 at 17.)
Section 7 of the Subcontract addresses 4 Cut’s insurance obligations. Under Section 7.2,
4 Cut must “comply with the Insurance Requirements ‘APPENDIX I’ contained within the

Prime Contract, which are hereby expressly incorporated by reference herein . . . .” (Id. § 7.2 at
23). Section 7.2 also requires 4 Cut to maintain “Comprehensive General Liability insurance . . .
for bodily injury, personal injury and property damage . . . .” (Id. § 7.2(a) at 23.) Finally, Section
7.3 requires 4 Cut to, “by specific endorsements to its primary comprehensive general liability, . .
. cause the following, and any other entity as required by Contractor or Owner, to be named as
Additional Insureds contained on ‘APPENDIX I.’” (Id. § 7.3 at 24.)
There is no “Appendix I” attached to the Subcontract or to the Prime Contract,
notwithstanding Section 7.2’s reference to Appendix I as a document “contained within the
Prime Contract.” (See Prime Contract at 3, ECF No. 28-20 (not including “Appendix I” in the list
of documents contained within the Prime Contract); Subcontract (not containing “Appendix I”).)

Additionally, the Subcontract does not identify any entities as “Additional Insureds.”
Traveler’s claim professional, Sharlene Alzate, attests, however, that a separate three-
page document that is undated, unsigned, and is labeled “Appendix I” is an appendix to the
Subcontract. (See Alzate Decl. ¶ 8, ECF No. 28-18.) Alzate asserts that the document is a “true
and accurate copy of Appendix ‘I’ to the Subcontract Agreement” between 4 Cut and Haugland,
and that “Travelers received this copy of Appendix ‘I’ to the Subcontract from Haugland in the
course of its investigation of the claim at issue in this litigation.” (Id.) Admiral disputes the
admissibility of Exhibit 15 to the Alzate Declaration. (See Def.’s Opp’n to MSJ at 11–12.)
In summary, the Subcontract (1) requires 4 Cut’s flaggers to have safety training and the
required safety devices, (2) purports to incorporate the Prime Contract by reference, (3) obligates
4 Cut to adhere to all of the obligations that Haugland has to LI Lighting pursuant to the Prime
Contract; (4) requires 4 Cut to maintain insurance coverage for bodily injury; and (5) requires 4

Cut to maintain additional insured coverage that is primary to other insurance available to the
additional insureds.
IV. The Travelers Policy to Haugland
From October 31, 2019 through October 31, 2020, Haugland had a commercial general
liability insurance policy from Travelers. (Travelers Policy, ECF Nos. 28-2 through 28-5.) The
Travelers Policy covers, among other things, bodily injury arising out of accidents during the
policy period. (Id. at 20, 38, ECF No. 28-2.)8 The Travelers Policy provides that its coverage is
primary, except where it is excess insurance. (Id. § IV.4.a., ECF No. 28-2 at 34.) Coverage under
the Travelers Policy is excess over “[a]ny of the other insurance, whether primary, excess,
contingent or on any other basis, that is available to the insured when the insured is an additional
insured, or is any other insured that does not qualify as a named insured, under such insurance.”

(Id. § IV.4(b), ECF No. 28-2 at 34.)
V. The Admiral Policy to 4 Cut
From August 9, 2019 through August 9, 2020, 4 Cut had a commercial general liability
insurance policy from Admiral. (Admiral Policy, ECF No. 28-6 through 28-7.) The Admiral
Policy covers, among other things, bodily injury arising out of accidents during the policy

8 Citations to the Travelers Policy refer to ECF pagination. Like the Prime Contract, Travelers
filed the Travelers Policy in parts located at ECF Nos. 28-2 through 28-5, and the divisions
between the parts appear to be arbitrary. This Opinion cites to the Travelers Policy as one
document and identifies the relevant section or page number and ECF location.
period. (Id. § I.1.a, ECF No. 28-6 at 9.)9 The Admiral Policy provides that its coverage is
primary, except where it is excess insurance. (Id. § IV.4.a, ECF No. 28-6 at 19.) Insurance under
the Admiral Policy “is primary to and will not seek contribution from any other insurance
available to an additional insured” under the Admiral Policy if the “additional insured is a

Named Insured under such other insurance” and “you have agreed in writing in a contract or
agreement that this insurance would be primary and would not seek contribution from any other
insurance available to the additional insured.” (Id. at 18, ECF No. 28-7.)
The Admiral policy is subject to an “Endorsement” that governs “Additional Insured—
Owners, Lessees or Contractors—Scheduled Person or Organization.” (Id. at 25, ECF No. 28-6.)
Pursuant to the Endorsement, an “additional insured” includes
[a]ny person or organization that is an owner or manager of real property or
personal property on which you are performing ongoing operations, or a
contractor on whose behalf you are performing ongoing operations, but only if
coverage as an additional insured is required by a written contract or written
agreement that is an ‘insured contract’, and provided the ‘bodily injury’ . . . first
occurs . . . subsequent to the execution of the contract or agreement.
(Id. (emphasis supplied).) This definition of an additional insured applies only with respect to
liability for bodily injury caused in whole or in party by 4 Cut’s acts or omissions, or the acts or
omissions of a party acting on 4 Cut’s behalf. (Id.)
In other words, under the Admiral Policy, an additional insured includes a contractor for
whom 4 Cut is working as well as the owner or manager of the property on which 4 Cut is
working if the bodily injury occurred (1) after the execution of a written ‘insured contract’ that
(2) requires additional insured coverage. Coverage under the Admiral Policy is primary to other

9 Citations to the Admiral Policy refer to ECF pagination. Like the Prime Contract and the
Travelers Policy, Travelers also filed the Admiral Policy in arbitrary parts located at ECF Nos.
28-6 through 28-7. Therefore, this Opinion cites to the Admiral Policy as one document and
identifies the relevant section or page number and ECF location.
insurance available to an additional insured if (1) the additional insured is a named insured under
that other insurance and (2) 4 Cut has agreed in writing that its insurance under the Admiral
Policy would be primary to that other insurance.

VI. The Motor Vehicle Accident and Certificate of Insurance
On January 2, 2020, Jean G. Charles (“Charles”) and Rosibel Lemus Sagastume
(“Sagastume”) were injured in a motor vehicle accident at the intersection of Bellmore Avenue
and North Jerusalem Road in Hempstead, New York. (ECF No. 28-9 ¶¶ 80–81; ECF No. 28-10
¶¶ 22–25.) According to the police report of the accident, “the traffic light at the . . . intersection
was turned off due to electrical service by PSEG. The intersection was controlled by two PSEG
flag men.” (ECF No. 28-25 at 1.)
On January 10, 2020, eight days after the motor vehicle accident and more than a year
after Haugland and 4 Cut entered into the Subcontract, Construction Risk Partners produced a
certificate of liability insurance (“2020 Certificate of Liability Insurance”), which indicates that 4
Cut was covered by commercial general liability insurance and contractual liability insurance
under Policy Number CA000031650-02 between August 2, 2019 and August 2, 2020. (ECF No.

28-8 at 33.) The 2020 Certificate of Liability Insurance also states that:
Haugland . . . as contractor and [LI Lighting and LI Electric], as owner, as well as
their subsidiaries and affiliates, their respective successors and assigns, agents,
servants, representatives, employees, and shareholders are additional insured as
required by written contract. Waiver of subrogation is applicable where required
by written contract and allowed by law. Coverage is primary and non-contributory
where required by written contract.

(Id.)
VII. Underlying State Court Actions
Charles and Sagastume filed separate personal injury lawsuits in state court and, after a
series of amendments, named PSEG as a defendant. (ECF No. 28-10; ECF No. 28-15.) Both
actions were joined for discovery and trial purposes. (ECF No. 28-12.) On August 4, 2021,
PSEG filed a third-party complaint against Haugland and 4 Cut in both actions. (ECF Nos. 28-
13–14.)
On April 28, 2021, Travelers tendered the defense and indemnification of Haugland and

PSEG in the underlying state court actions to Admiral and 4 Cut. (ECF No. 28-16.) Admiral
denied the tender in a June 10, 2021 letter. (ECF No. 28-26.) Travelers retendered the defense
and indemnification of Haugland and PSEG to Admiral on August 5, 2021 (ECF No. 28-27), and
on August 6, 2021, Admiral accepted the retender (ECF No. 28-28). In a series of emails dating
September 30, 2021 through October 6, 2021, Admiral then denied the retender. (ECF No. 28-
29.) On June 9, 2022, Travelers agreed to defend and indemnify PSEG in connection with the
underlying state court actions. (ECF No. 28-31.)

PROCEDURAL HISTORY
On September 22, 2022, Travelers filed the initial complaint in this action. (ECF No. 1.)
On November 28, 2022, Admiral answered the complaint. (ECF No. 8.) On February 8, 2023,
Travelers sought leave to amend the complaint. (ECF No. 15.) Magistrate Judge Steven I. Locke
granted leave to amend on March 15, 2023, and Travelers filed the Amended Complaint that
same day. (Elec. Order, Mar. 15, 2023; Am. Compl.) The Amended Complaint seeks a
declaration that Haugland and PSEG are additional insureds under the Admiral Policy, and that
such coverage is primary and non-contributory with any coverage provided by the Travelers

Policy. (Am. Compl. ¶¶ 33–35.)
Admiral answered the Amended Complaint on April 4, 2023. (ECF No. 17.) On August
11, 2023, both parties filed letters requesting pre-motion conferences regarding anticipated
motions for summary judgment. (ECF Nos. 19, 20.) The parties filed responses to each other’s
letters on August 18, 2023. (ECF Nos. 21, 22.)
On October 11, 2023, this case was re-assigned to my docket. (Notice, Oct. 11, 2023.) On
October 27, 2023, I denied the requests with leave to renew because neither party supported its

request with a Local Rule 56.1 statement. (Elec. Order, Oct. 27, 2023.) The parties timely
submitted renewed letters with Local Rule 56.1 statements. (ECF Nos. 23, 25–27.) On January
24, 2024, I ordered a briefing schedule for the cross-motions for summary judgment. (Elec.
Order, Jan. 24, 2024.) The cross-motions were fully briefed and filed on April 3, 2024.
In support of its partial Motion for Summary Judgment seeking a declaratory judgment
that Admiral has a duty to defend Haugland and PSEG, Travelers submits a memorandum of law
(Pl.’s Mem. ISO MSJ, ECF No. 28-32), the Declaration of Attorney Lisa Szczepanski
(Szczepanski Decl., ECF No. 28-1) with attached exhibits (ECF Nos. 28-2 through 28-17), and
the Declaration of Sharlene Alzate, a Traveler’s claim professional (Alzate Decl., ECF No. 28-
18) with attached exhibits (ECF Nos. 28-19 through 28-31). Admiral opposed Travelers’ Motion

(Def.’s Opp’n to MSJ, ECF No. 29) and Travelers replied (Pl.’s Reply ISO MSJ, ECF No. 30).
Admiral cross-moves for summary judgment seeking a declaratory judgment that
Admiral has no duty to defend or indemnify PSEG, Haugland, or any other entity in connection
with the underlying state court actions. In support, Admiral submits a memorandum of law
(Def.’s Mem. ISO MSJ, ECF No. 31-23), a Local Rule 56.1 statement (ECF No. 31-22), and the
Declaration of Attorney Melissa P. Tsynman (Tsynman Decl., ECF No. 31-1) and exhibits
attached to that declaration (ECF Nos. 31-2 through 31-21). Travelers opposed the Motion (Pl.’s
Opp’n to MSJ, ECF No. 32), and Admiral replied (Def.’s Reply ISO MSJ, ECF No. 33).
LEGAL STANDARDS
I. Summary Judgment
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). The
moving party bears the burden of demonstrating the absence of a material question of fact.

Balderramo v. Go N.Y. Tours Inc., 668 F. Supp. 3d 207, 219 (S.D.N.Y. 2023) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “A fact is material if it might affect the outcome of
the suit under the governing law.” Cunningham v. Cornell Univ., 86 F.4th 961, 980 (2d Cir.
2023). A dispute of “material fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
In order to defeat summary judgment, the non-moving party must set forth sufficient facts
showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). The non-moving party
“may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment.” Daly v. Westchester Cnty. Bd. of Legislators, No. 23-1220-CV,
2024 WL 3264125, at *2 (2d Cir. July 2, 2024). “Mere conclusory allegations or denials cannot

by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks
v. Banes, 593 F.3d 159, 166 (2d Cir. 2010). A court considering whether summary judgment is
appropriate “must construe the facts in the light most favorable to the non-moving party and
must resolve all ambiguities and draw all reasonable inferences against the movant.”
Cunningham, 86 F.4th at 980; see also Woods v. Centro of Oneida, Inc., 103 F.4th 933, 939 (2d
Cir. 2024) (“We may find for the movant defendant only if we conclude that on the record
presented, considered in the light most favorable to the non-movant, no reasonable jury could
find in movant’s favor.”). If “the party opposing summary judgment propounds a reasonable
conflicting interpretation of a material disputed fact,” summary judgment must be denied.
Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983).
Where more than one party moves for summary judgment, “each party’s motion must be
examined on its own merits, and in each case all reasonable inferences must be drawn against the

party whose motion is under consideration.” BWP Media USA Inc. v. Polyvore, Inc., 922 F.3d
42, 47 (2d Cir. 2019). Therefore, when evaluating Travelers Motion, I draw all reasonable
inferences against Travelers; when considering Admiral’s cross-Motion, I draw all reasonable
inferences against Admiral.
II. Contract Interpretation
Under New York law, the interpretation of an unambiguous contract “is a matter of law
for the court to decide.” Phila. Indem. Ins. Co. v. Streb, Inc., 487 F. Supp. 3d 174, 183 (S.D.N.Y.
2020) (citing Int’l Multifoods Corp. v. Com. Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002));
Long Island Minimally Invasive Surgery, P.C. v. MultiPlan, Inc., 212 N.Y.S.3d 701, 704 (N.Y.
App. Div. 2024) (“The threshold question of whether a contract is unambiguous, and the
subsequent construction and interpretation of an unambiguous contract, are issues of law within

the province of the court.”).10 “Generally, the courts bear the responsibility of determining the
rights or obligations of parties under insurance contracts based on the specific language of the
policies.” Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 97 N.E.3d
711, 712–13 (N.Y. 2018). A court determining a dispute over insurance coverage looks first to

10 “The parties’ briefs assume that New York law controls this dispute, and such implied consent
is sufficient to establish choice of law.” Phx. Ins. Co. v. Hudson Excess Ins. Co., No. 21-cv-4474,
2023 WL 5048629, at *6 n.10 (S.D.N.Y. Aug. 8, 2023) (citing Santalucia v. Sebright Transp.,
Inc., 332 F.3d 293, 296 (2d Cir. 2000)).
the language of the relevant insurance policy and gives “unambiguous provisions . . . their plain
and ordinary meaning.” Id.

III. Duty to Defend
“The duties to defend and indemnify are separate and distinct; the former is a form of
litigation insurance for the insured.” Barney Greengrass, Inc. v. Lumbermens Mut. Cas. Co., 445
F. App’x 411, 413 (2d Cir. 2011). Under New York law, “the duty of an insurer to defend its
insured is ‘exceedingly broad’ and far more expansive than the duty to indemnify its insured.”
High Point Design, LLC v. LM Ins. Corp., 911 F.3d 89, 94–95 (2d Cir. 2018) (quoting Cont’l
Cas. Co. v. Rapid-Am. Corp., 609 N.E.2d 506 (1993)); accord Regal Constr. Corp. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 15 N.Y.3d 34, 37 (N.Y. 2010); Sammy v. First Am. Title Ins.
Co., 168 N.Y.S.3d 519, 524 (N.Y. App. Div. 2022) (“A duty to defend is triggered by the
allegations contained in the underlying complaint, and such duty is ‘exceedingly broad.’”). An
“insurer will be called upon to provide a defense whenever the allegations of the complaint
suggest a reasonable possibility of coverage.” Regal, 15 N.Y.3d at 37. “This standard applies
equally to additional insureds and named insureds.” Id.

DISCUSSION
Travelers moves for partial summary judgment on its Declaratory Judgment Act claim for
a declaration that Admiral is required to defend Haugland and PSEG as additional insureds under
the Admiral Policy issued to 4 Cut, and that such coverage is primary and non-contributory with
any coverage provided by the Travelers Policy to Haugland. (See generally Pl.’s Mem. ISO

MSJ.) Admiral cross-moves for summary judgment, arguing that there is no genuine question of
material fact that it is not required to defend and indemnify Haugland and PSEG as additional
insureds under the Admiral Policy and seeking a declaration stating so. (Def.’s Mem. ISO MSJ at
1.) I must therefore resolve whether, based on the undisputed facts, Haugland and PSEG are
additional insureds under the Admiral Policy.
Under the Admiral Policy, an additional insured includes a contractor for whom 4 Cut is
working as well as the owner or manager of the property on which 4 Cut is working “only if” the

bodily injury occurred (1) after the execution (2) of a written “insured contract” that (3) requires
additional insured coverage. (Admiral Policy at 25, ECF No. 28-6.) The parties’ dispute centers
around whether the Subcontract constitutes a “written insured contract” that requires 4 Cut to
obtain additional insured coverage for Haugland and PSEG. (Compare Pl.’s Mem. ISO MSJ at
16–18 (arguing that the Subcontract requires additional insured coverage for Haugland and
PSEG) with Def.’s Opp’n to MSJ at 10–19 (arguing that “no provision in the [Subcontract] . . .
expressly and specifically requires 4 Cut to procure additional insurance coverage” for Haugland
and PSEG) and Def.’s Mem. ISO MSJ at 2 (same).). The parties also dispute whether Haugland
and PSEG are entitled to coverage as additional insureds under the Prime Contract. (Compare
Def.’s Mem. ISO MSJ at 14 with Pl.’s Opp’n to MSJ at 8–9.)

Travelers argues that the Subcontract requires additional insured coverage for Haugland
and PSEG for two reasons. First, it contends that Haugland and PSEG are named as additional
insureds in Appendix I to the Subcontract and in the 2020 Certificate of Liability Insurance that
is attached to the Subcontract. (Pl.’s Mem. ISO MSJ at 16–17.) Second, Traveler’s asserts that
the Subcontract incorporated by reference the additional insured requirements of the Prime
Contract and that 4 Cut assumed those requirements, which require Haugland to obtain
commercial general liability insurance covering bodily injury and naming as “as additional
insureds on a primary and non-contributory basis” LI Electric and LI Lighting, “as well as their
agents, servants, representatives, employees, shareholders, successors, and assigns,” prior to the
start of any work under the Prime Contract. (Id. at 18–20; Prime Contract § 14.1; 14.1.b; 14.3
ECF No. 28-20 at 36, 40.) Travelers also argues that PSEG and Haugland are covered by these
requirements by virtue of their relationships to LI Lighting and LI Electric. (Pl.’s Mem. ISO MSJ
at 16–17.)

Admiral rejects both arguments and contends that no written agreement—whether the
Subcontract or the Prime Contract—requires 4 Cut to obtain additional insured coverage for
Haugland or PSEG. (See, e.g., Def.’s Mem. ISO MSJ at 2.) Admiral argues that the document
offered by Travelers as Appendix I to the Subcontract is inadmissible as evidence supporting
Traveler’s Motion, and that therefore, there is no Appendix I to the Subcontract that obligates 4
Cut to obtain commercial general liability insurance naming Haugland and PSEG as additional
insureds. Admiral also argues that even if the Subcontract incorporates the additional insured
requirements of the Prime Contract, those requirements do not obligate 4 Cut to obtain such
coverage for Haugland and PSEG because the specific language of Section 14.3 does not
reference Haugland or PSEG by name or use other terms that cover these entities. (Id. at 14.)

For the following reasons, genuine questions of material fact preclude a determination
that Haugland and PSEG are additional insureds under the Admiral policy issued to 4 Cut and a
determination that PSEG is entitled to additional insured coverage under Section 14 of the Prime
Contract. I also find that, as a matter of law, Haugland is not entitled to additional insured
coverage under Section 14 of the Prime Contract. I therefore deny Travelers’ partial Motion for
Summary Judgment on its claim for a declaratory judgment that Admiral has a duty to defend. I
also grant in part and deny in part Admiral’s Motion for Summary Judgment seeking a
declaration that Admiral does not have a duty to defend, and deny as premature Admiral’s
Motion seeking a declaration that it has no duty to indemnify Haugland, PSEG, or any other
party in connection with the underlying state court actions.

I. Travelers Cannot Rely on Exhibit 15 to the Alzate Declaration Because it is
Inadmissible.
In support of its Motion for Summary Judgment and in opposition to Admiral’s cross-
Motion, Travelers argues that there is an Appendix I to the Subcontract, which “requires 4 Cut to
procure and maintain liability insurance naming [LI Lighting] and [LI Electric], their successors
and assigns, as well as their agents, servants, representatives, employees [and] shareholders [. .
.] as additional insured[s].” (Pl.’s Mem. ISO MSJ at 16 (citing Appendix I ¶ 3, ECF No. 28-24);
Pl.’s Opp’n to MSJ at 2–3, 5–6.) Travelers argues that I should credit the attestation of Sharlene
Alzate that the document titled “Appendix I,” which is attached as Exhibit 15 to the Alzate
Declaration, is a true and correct copy of an appendix to the Subcontract titled “Appendix I.”
(Pl.’s Mem. ISO MSJ at 17–18; Pl.’s Reply ISO MSJ at 2.) According to Travelers, Exhibit 15 to
the Alzate Declaration is “expressly referenced in the Subcontract,” was “obtained from
Haugland, one of the parties to the Subcontract,” and the 2020 Certificate of Liability Insurance
“corroborates the authenticity of Appendix I in that it lifts language directly from it.” (Pl.’s Mem.
ISO MSJ. at 17–18 (citations omitted).)
Admiral disputes Travelers’ reliance on Exhibit 15 to the Alzate Declaration. First,
Admiral notes that Travelers identifies the document as an appendix to the Subcontract, but the
plain text of the Subcontract states that “‘APPENDIX I’ [is] contained within the Prime Contract

. . . .” (Def.’s Opp’n to MSJ at 11 (quoting Subcontract § 7.2, ECF No. 28-8 at 23).) Second,
Admiral observes that “the Prime Contract does not list ‘Appendix I’ as an enumerated document
made part of the contract” and that “there is no ‘Appendix I’ contained within, annexed to, or
otherwise made a part of the Prime Contract or the . . . Subcontract.” (Id.; see also Def.’s Mem.
ISO MSJ at 2, 11–12.) Third, Admiral argues that Travelers has not authenticated Exhibit 15 to
the Alzate Declaration as “Appendix I” because the document is not signed or dated and is not
attached to any written contract that is signed and dated. (Def.’s Opp’n to MSJ at 11–12.)
Admiral asserts that Travelers has not identified who created Exhibit 15 to the Alzate

Declaration or when it was created, has not provided an affidavit from either party to the
Subcontract with personal knowledge as to whether the document was part of the Subcontract,
and has not provided any sworn statement by a party with personal knowledge as to the
document. (Id. at 12.)
On reply, Travelers argues that Exhibit 15 to the Alzate Declaration is admissible as
Appendix I to the Subcontract and that Admiral “has denied the existence of Appendix I to the
Subcontract while simultaneously citing to the provisions of the Subcontract that explicitly
incorporate Appendix I.” (Pl.’s Reply at 2–3.) Travelers also argues that Admiral insinuates that
the Subcontract is ambiguous, and that disputed documents were authenticated in the exact same
manner as Exhibit 15 to the Alzate Declaration in a recent decision of this Court, Travelers

Indemnity Co. of America v. Accredited Surety & Casualty Co., Inc., No. 21-cv-7189, 2024 WL
1092681 at *3 (E.D.N.Y. Mar. 13, 2024). (Pl.’s Reply ISO MSJ at 2–4.) Finally, Travelers
contends that Exhibit 15 to the Alzate Declaration “duplicate[s] the exact insurance procurement
provisions from the Prime Contract into a rider . . . incorporated . . . into the Subcontract as
Appendix ‘I’.” (Id. at 9.)
“The evidence submitted on a motion for summary judgment must set forth facts that
would be admissible in evidence if offered at trial.” Platt v. Michaan, 695 F. Supp. 3d 420, 440
(S.D.N.Y. 2023), appeal dismissed, No. 23-7676, 2023 WL 9510839 (2d Cir. Dec. 27, 2023); see
also Grabin v. Marymount Manhattan Coll., 659 F. App’x 7, 9 (2d Cir. 2016) (“[A]ny evidence
considered on summary judgment must be reducible to admissible form.”). The authentication of
an item of evidence is a “condition precedent” to admissibility. United States v. Vayner, 769 F.3d
125, 129–30 (2d Cir. 2014). Rule 901 of the Federal Rules of Evidence (“Fed. R. Ev.”) requires a
proponent of an item of evidence to “produce evidence sufficient to support a finding that the

item is what the proponent claims it is.” Fed. R. Ev. 901(a). Rule 901 is satisfied by introducing
“sufficient proof so that a reasonable juror could find in favor of authenticity or identification.”
United States v. El Gammal, 831 F. App’x 539, 542 (2d Cir. 2020) (citing United States v. Tin
Yat Chin, 371 F.3d 31, 38 (2d Cir. 2004)). “The type and quantum of evidence required is related
to the purpose for which the evidence is offered, and depends upon a context-specific
determination whether the proof advanced is sufficient to support a finding that the item in
question is what its proponent claims it to be.” Vayner, 769 F.3d at 129. “The proponent need not
rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the
evidence is what it purports to be.” Id. at 130. “The ultimate determination as to whether the
evidence is, in fact, what its proponent claims is thereafter a matter for the jury.” Id.

Here, Travelers’ argument—which is centered around the document it proffers as
Appendix I—is unpersuasive because Travelers has failed to submit “sufficient proof so that a
reasonable juror could find” that the document is, in fact, part of the Subcontract—whether as an
appendix or rider to the Subcontract, as Travelers argues—or as an appendix to the Prime
Contract, as suggested by the text of the Subcontract itself. El Gammal, 831 F. App’x at 542. The
document is neither signed nor dated, and it is not physically part of either the Subcontract or the
Prime Contract. See Appendix I, ECF No. 28-24; cf. Accredited Surety & Cas. Co., Inc., 2024
WL 1092681 at *2–3 (finding plaintiff submitted a valid and authenticated purchase order
identifying additional insureds where purchase order was signed by the party accepting the offer
and both parties to the purchase order behaved as if there were a contract between them). The
document is not a self-authenticating document recognized in Rule 902, Fed. R. Ev., such as
certain public records, periodicals, or business records. Vayner, 769 F.3d at 129–30. Both
Travelers and Admiral have submitted the Subcontract and Prime Contract in support of their

cross-motions for summary judgment. (See ECF Nos. 28-20–23, 34 (Prime Contracts); ECF Nos.
28-8, 31-17 (Subcontract).)11 None of the versions of these contracts include Appendix I in any
form, raising questions about how any insurance requirements set forth in Exhibit 15 to the
Alzate Declaration can be an appendix or rider to the Subcontract or can be otherwise
incorporated in the Subcontract by virtue of being a part of the Prime Contract.
Moreover, Travelers fails to submit an affidavit from a witness with personal knowledge
that the three-page document proffered as Appendix I is in fact part of the Subcontract as
Travelers contends. Alzate attests that “Travelers received this copy of Appendix I to the
Subcontract from Haugland in the course of its investigation of the claim at issue in the
Underlying Actions.” (Alzate Decl. ¶ 8.) Alzate thus suggests that Haugland told Travelers that

Exhibit 15 to the Alzate Declaration is indeed an appendix to the Subcontract, but does not attest
to having personal knowledge about the creation or execution of Appendix I. Alzate does not
explain why, if Exhibit 15 to the Alzate Declaration is part of the Subcontract, it is not physically

11 Admiral filed a document at Exhibit G to the Tsynman Declaration in support of its Motion for
Summary Judgment and identified that document as the Prime Contract. (Tsynman Decl. ¶ 9.)
On September 6, 2024, I observed that Exhibit G to the Tysnman Declaration did not appear to
be the Prime Contract and I ordered Admiral to re-file any corrected Exhibit G by September 11,
2024. (Elec. Order, Sept. 6, 2024.) Admiral timely re-filed a corrected Exhibit G. (ECF No. 34.)
The document appears to be a copy of the Prime Contract between LI Electric and LI Lighting
and Haugland, though it also appears to be missing the last three pages of the contract as
compared to the version submitted by Travelers. (Compare ECF No. 28-23 at 29–32 with ECF
No. 34 at 285.)
attached to the Subcontract. Nor does Travelers offer a witness from Haugland to explain what
the document is or how Haugland obtained it.
Travelers has failed to “produce evidence sufficient to support a finding that” Exhibit 15
to the Alzate Declaration, proffered as Appendix I, “is what the proponent claims it is,” Fed. R.

Ev. 901(a)—an appendix to the Subcontract (see, e.g., Pl.’s Mem. ISO MSJ at 16)—and thus
failed to authenticate the document as required. I therefore do not consider it in evaluating
Travelers’ Motion for Summary Judgment.
Because Exhibit 15 to the Alzate Declaration is not authenticated and therefore
inadmissible for consideration in evaluating the parties’ cross-motions for summary judgment, I
deny the portion of Travelers’ Motion for Summary Judgment that argues that Appendix I to the
Subcontract requires additional insured coverage for Haugland and PSEG.

II. The Subcontract’s General Incorporation Clause Fails to Incorporate the
Additional Insured Requirements of the Prime Contract by Reference.
The parties dispute whether the Subcontract’s general incorporation clause incorporates
by reference the additional insured requirements contained in the Prime Contract; Travelers
argues that it does, Admiral argues that it does not. (See Pl.’s Mem. ISO MSJ at 18–19; Def.’s
Mem. ISO MSJ at 11–13.) For the following reasons, as a matter of law, the general
incorporation clause fails to incorporate the additional insured requirements contained in the
Prime Contract. Therefore, I deny Travelers summary judgment and grant Admiral summary
judgment on this point.
Traveler’s argues that the Subcontract’s general incorporation clause incorporates by
reference the additional insured requirements set out at Section 14 of the Prime Contract and
that, as a result, 4 Cut assumed the obligations to which Haugland agreed in the Prime Contract,
which include additional insured coverage for LI Lighting, LI Electric, and “their successors and
assigns, as well as their agents, servants, representatives, employees, [and] shareholders[…] on a
primary and non-contributory basis[.]” (Pl.’s Mem. ISO MSJ at 18–19 (citing Prime Contract
§ 14 et seq., ECF No. 28-20 at 40).) In order to prevail on its Motion, Travelers must show that
there is no genuine question of material fact that the Subcontract incorporates by reference the

additional insured requirements of the Prime Contract and that these requirements obligate 4 Cut
to provide additional insurance coverage on a primary and non-contributory basis to Haugland
and PSEG.
In opposition, Admiral argues that the Subcontract does not incorporate by reference the
additional insured requirements set out in Section 14 of the Prime Contract because the
Subcontract does not specifically, expressly, or unambiguously incorporate these requirements.
(Def.’s Opp’n to MSJ at 15–16.) Admiral asserts that the incorporation by reference language of
the Subcontract relates only to the “scope, quality, character and manner of the work” covered by
the Prime Contract and does not extend to the specific additional insured requirements, which are
set forth in Section 14 of the Prime Contract. (Id. at 15–16.)

On reply, Travelers reiterates its argument that 4 Cut “expressly assumed” Haugland’s
obligations under the Prime Contract, “and was, therefore, contractually required to procure
additional insured coverage for Haugland and PSEG.” (Pl.’s Reply ISO MSJ at 3.)
Admiral also moves for summary judgment on this question, arguing that, as a matter of
law, the Subcontract’s general incorporation clause does not incorporate the additional insured
requirements set forth in Section 14 of the Prime Contract. (Def.’s Mem. ISO MSJ at 2, 11–13.)
Admiral reiterates its argument that the Subcontract does not clearly and unambiguously
incorporate the additional insured requirements of the Prime Contract because these
requirements are not “expressly and specifically stated” in the Subcontract. (Id. at 11.) For
Admiral to win summary judgment on this argument, it must show that there is no genuine
question of fact that the Subcontract does not incorporate the additional insured requirements of
the Prime Contract.
“The doctrine of incorporation by reference is grounded on the premise that the material

to be incorporated is so well known to the contracting parties that a mere reference to it is
sufficient.” Maines Paper & Food Serv., Inc. v. Keystone Assocs., 23 N.Y.S.3d 398, 400 (N.Y.
App. Div. 2015). “[T]he paper to be incorporated into a written instrument by reference must be
so referred to and described in the instrument that the paper may be identified beyond all
reasonable doubt.” County of Rockland v. N.Y. State Pub. Emp. Rels. Bd., 207 N.Y.S.3d 197, 201
(N.Y. App. Div. 2024). Under New York law, “incorporation clauses in a construction
subcontract, incorporating prime contract clauses by reference into a subcontract, bind a
subcontractor only as to prime contract provisions relating to the scope, quality, character and
manner of the work to be performed by the subcontractor.” N.Y.C. Hous. Auth. v. Harleysville
Worcester Ins. Co., 209 N.Y.S.3d 130, 134 (N.Y. App. Div. 2024) (holding that language in the

subcontract incorporating the terms of the prime contract, which required the general contractor
to add the owner as an additional insured under its policy, was insufficient to confer additional
insured status on the owner with respect to the subcontractor’s policy); see also Amerisure Ins.
Co. v. Selective Ins. Grp., Inc., No. 21-1516, 2023 WL 3311879, at *4 (2d Cir. May 9, 2023)
(citing Persaud v. Bovis Lend Lease, Inc., 941 N.Y.S.2d 208, 210–11 (N.Y. App. Div. 2012))
(same); Lexington Ins. Co. v. Kiska Dev. Grp. LLC, 122 N.Y.S.3d 590, 592 (N.Y. App. Div.
2020) (same); City of New York v. Nova Cas. Co., 959 N.Y.S.2d 916, 917 (N.Y. App. Div. 2013)
(same).
Courts find that a prime contract’s insurance obligations are incorporated by reference
into a subcontract where they are expressly referenced in the subcontract. For example, in
Carlisle SoHo East Trust v. Lexington Insurance Co., the Second Department of the New York
Appellate Division found incorporation by reference where a sub-subcontract expressly stated

that all insurance requirements set forth in the subcontract were binding on the sub-subcontractor
and where the sub-subcontractor made specific revisions to the subcontract’s provisions setting
forth limits for umbrella coverage, but not to those concerning additional insured coverage,
thereby demonstrating an intent to be bound by the additional insured provision. 852 N.Y.S.2d
118, 119 (N.Y. App. Div. 2008).
Here, the general incorporation clause of the Subcontract does not incorporate the
additional insured requirements of the Prime Contract because it does not expressly reference
them. (See Subcontract § 1.1, 1.2, ECF No. 28-8 at 17.) Instead, the general incorporation clause
states that “the Prime Contract in its entirety is incorporated by reference and made part of this
Subcontract as though set forth at length,” and states that 4 Cut “is bound unto [Haugland] by the

terms of” the Prime Contract “and will conform to and comply with it and assume toward
[Haugland] all the obligations and responsibilities that [Haugland] assumes to Owner in and by
the Prime Contract with respect to all aspects of the work called for herein and with respect to all
obligations, duties, conditions and requirements related to the entire fulfillment and performance
of the Prime Contract.” (Id.§ 1.1, ECF No. 28-8 at 17.) The general incorporation clause does not
refer to the additional insured requirements set forth in Section 14 of the Prime Contract,
although it makes specific reference to the Prime Contract’s “administrative and procedural
provisions [and] dispute resolution provisions.” (Id. § 1.2., ECF No. 28-8 at 17.) Therefore as a
matter of law, the general incorporation clause of the Subcontract does not incorporate by
reference the additional insured requirements set forth in Section 14 of the Prime Contract. See
County of Rockland, 207 N.Y.S.3d at 201 (requiring “the paper to be incorporated into a written
instrument by reference” to be described with specificity such that it “may be identified beyond
all reasonable doubt”); cf. Carlisle SoHo E. Tr., 852 N.Y.S.2d at 119 (finding incorporation by

reference where agreement “expressly stated” that all insurance requirements in subcontract were
binding on sub-subcontractor).
Accordingly, there is no question of fact that the general incorporation clause of the
Subcontract does not incorporate by reference the additional insured requirements of the Prime
Contract, and I deny Travelers summary judgment and grant Admiral summary judgment on this
point. Because Travelers has failed to show that Haugland and PSEG are additional insureds
under the Admiral Policy as a matter of law, I do not reach Travelers’ arguments about whether
Section 14 of the Prime Contract requires coverage for Haugland and PSEG or its arguments that
coverage under the Admiral Policy is primary to the coverage under the Travelers Policy.

III. Section 7’s Reference to the Insurance Requirements Contained in the Prime
Contract is Ambiguous.
Admiral moves for summary judgment on the grounds that the reference in Section 7 of
the Subcontract to the “Insurance Requirements ‘Appendix I’ contained within the Prime
Contract” fails to incorporate the additional insured requirements of the Prime Contract because
there is no Appendix I “contained within, annexed to, or otherwise made a part of the Prime
Contract” or the Subcontract. (Def.’s Mem. ISO MSJ at 11–12.) In order to prevail, Admiral
must show that there is no genuine question of fact that Section 7 of the Subcontract does not
incorporate the additional insured requirements of the Prime Contract.
In opposition to Admiral’s Motion, Travelers—for the first time in its briefs on these
cross-motions—does “not contest that there is no Appendix ‘I’ to the Prime Contract” but instead
asserts that, “as clearly indicated in the Subcontract between Haugland and 4 Cut, the
requirements set forth in Appendix ‘I’ are ‘contained within the Prime Contract’ . . . [t]hat is to
say that the provisions in Appendix ‘I’ to the Subcontract come directly from the Prime
Contract.” (Pl.’s Opp’n at 5.) According to Travelers, this argument is “confirmed simply by

comparing the ‘INSURANCE’ section of the Prime Contract to Appendix ‘I’ to the
Subcontract”—referring to the document attached as Exhibit 15 to the Alzate Declaration. (Id.)
Travelers asserts that “[t]he parties to the Subcontract clearly copied § 14, et seq. of the Prime
Contract into an appendage to the Subcontract to ensure that the provisions contained therein
would be incorporated into their agreement.” (Id.)
On reply, Admiral reiterates the arguments made in opposition to Travelers’ Motion that
Exhibit 15 to the Alzate Declaration, which Travelers submits as Appendix I to the Subcontract,
is inadmissible because it is not authenticated and argues that “[w]hether there is similar or
identical language between” that document and Section 14 of the Prime Contract “is irrelevant.”
(Def.’s Reply ISO MSJ at 1–5.)

I have already found that Travelers cannot rely on Exhibit 15 to the Alzate Declaration
because it failed to “produce evidence sufficient to support a finding that” this document
proffered as Appendix I to the Subcontract “is what the proponent claims it is.” Fed. R. Ev.
901(a); supra Discussion, Section I. Reading the Subcontract in the light most favorable to
Travelers and drawing all inferences in its favor, I find that the reference in Section 7 of the
Subcontract to “the Insurance Requirements ‘APPENDIX I’ contained within the Prime
Contract” is ambiguous and raises a question of fact as to whether 4 Cut and Haugland intended
4 Cut to be obligated to provide additional insured coverage for Haugland and PSEG.
(Subcontract § 7.2, ECF No. 28-8 at 23.) I therefore deny Admiral’s Motion for Summary
Judgment on the argument that Section 7 fails to incorporate by reference the additional insured
requirements of the Prime Contract.
“Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its
purpose and the parties’ intent, or where its terms are subject to more than one reasonable

interpretation.” Universal Am. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 37 N.E.3d 78,
80–81 (N.Y. 2015); see also Greenfield v. Philles Recs., Inc., 780 N.E.2d 166, 173 (N.Y. 2002)
(“[A]n ambiguity never arises out of what was not written at all, but only out of what was written
so blindly and imperfectly that its meaning is doubtfull[.]”). “[T]he test to determine whether an
insurance contract is ambiguous focuses on the reasonable expectations of the average insured
upon reading the policy and employing common speech.” Universal Am. Corp., 37 N.E.3d at 80–
81. While the interpretation of an unambiguous contract is a matter of law for the court, the
resolution of ambiguity in a contract is for the trier of fact. Long Island Minimally Invasive
Surgery, 212 N.Y.S.3d at 704.
Here, Section 7’s references to “the Insurance Requirements ‘APPENDIX I’ contained

within the Prime Contract” are ambiguous for two reasons. First, the plain language of these
references “fails to disclose . . . the parties’ intent” as to what specific insurance requirements
Section 7 seeks to incorporate into the Subcontract. Universal Am. Corp., 37 N.E.3d at 80–81.
The references themselves do not describe the substance of any specific insurance requirements
to which 4 Cut agrees to be bound or clearly refer to any specific language in the Prime Contract.
Compounding this ambiguity is the fact that there is no “Appendix I” contained within or
attached to the Prime Contract. Second, these references are “subject to more than one
reasonable interpretation” because they could be reasonably understood by the average reader to
refer to an appendix to the Prime Contract titled “Appendix I” that sets forth certain insurance
requirements, as Admiral suggests, or to restate verbatim in a separate document titled
“Appendix I” the specific insurance requirements set forth in Section 14 of the Prime Contract,
as Travelers suggests. This ambiguity means that it is not clear whether I should look for an
“Appendix I” contained within or attached to the Prime Contract or whether there is some other

document titled “Appendix I” that sets out the insurance requirements contained in the Prime
Contract.
The extrinsic evidence put forward by Travelers supports the conclusion that Section 7 is
ambiguous as to whether 4 Cut and Haugland intended to incorporate the additional insured
requirements of Section 14 of the Prime Contract and require 4 Cut to obtain additional insured
coverage for Haugland and PSEG. See Long Island Minimally Invasive Surgery, 212 N.Y.S.3d at
704 (“Extrinsic evidence of the parties’ intent may be considered only if the agreement is
ambiguous, and such evidence is not admissible to create an ambiguity.”). Travelers submits the
2020 Certificate of Liability Insurance “as extrinsic evidence of the parties’ intent to provide
coverage” to Haugland. (Pl.’s Mem. ISO MSJ at 17.)12 The 2020 Certificate of Liability

Insurance was produced by Construction Risk Partners and indicates that 4 Cut was covered by
commercial general liability insurance and contractual liability insurance under Policy Number
CA000031650-02 between August 2, 2019 and August 2, 2020. (ECF No. 28-8 at 33.) The 2020
Certificate of Liability Insurance states that “[Haugland] as contractor and [LI Lighting and LI
Electric], as owner, as well as their subsidiaries and affiliates, their respective successors,
assigns, agents, . . . and shareholders are additional insured as required by written contract.” (Id.)
This document suggests that 4 Cut may have understood its insurance obligations under the

12 Travelers admits that the 2020 Certificate of Liability Insurance does not itself confer
coverage. (Pl.’s Mem. ISO MSJ at 17.)
Subcontract to include the obligation to obtain additional insured coverage for Haugland and for
the subsidiaries, affiliates, successors, assigns, agents, and shareholders of LI Lighting, which
may, in turn, suggest that 4 Cut intended to incorporate the additional insured requirements of
Section 14 of the Subcontract.

Because Section 7’s reference to the insurance requirements contained in the Prime
Contract is ambiguous, I deny the portion of Admiral’s Motion for Summary Judgment that
seeks judgment as a matter of law on the basis that Section 7 of the Subcontract does not
incorporate the additional insured requirements of the Prime Contract.
IV. Section 14 of the Prime Contract Does not Require Additional Insurance
Coverage for Haugland, but Does Requires Coverage for PSEG.
In support of its Motion for Summary Judgment, Admiral argues that Section 14 of the
Prime Contract does not require additional insured coverage for Haugland or PSEG because they
are not listed in the group of entities for whom additional insurance is required. (Def.’s Mem.
ISO MSJ at 13–15 (quoting Prime Contract § 14.3, ECF No. 28-20 at 40).) According to
Admiral, to the extent that the first half of Section 14.3, which uses more general language,
differs from the second half, which uses more specific language, the more specific language
controls. (Def.’s Mem. ISO MSJ at 14.) Admiral cites Section 2 of the Prime Contract titled
“Order of Precedence” to argue that “in the event of a conflict . . . the most stringent requirement
will take precedence . . . .” (Id. (quoting Prime Contract § 2, ECF No. 28-20 at 3).) For Admiral
to prevail, the record must show that there is no genuine material question of fact that Section 14

of the Prime Contract does not require additional insured coverage for Haugland or PSEG.
In opposition, Travelers argues that Admiral’s proposed reading of Section 14.3 “ignores
all of the entities that qualify for additional insured coverage as ‘subsidiaries,’ ‘affiliates,’
‘successors,’ and ‘assigns’ of [LI Lighting and LI Electric] . . . [and] is contrary to binding
authority.” (Pl.’s Opp’n to MSJ at 4.) Travelers does not specify whether or how Haugland or
PSEG qualify for additional insured coverage via one of those relationships to LI Lighting or LI
Electric. (See id.) Instead, Travelers argues that the 2020 Certificate of Liability Insurance
“expressly identifies Haugland as an additional insured . . . and encompasses PSEG as an

‘affiliate’ and/or ‘shareholder’ of [LI Electric] . . . and/or ‘agent’ and/or ‘assign’ of [LI
Lighting].” (Id. at 4–5.) In support of its argument that PSEG is an affiliate and/or shareholder of
LI Electric, Travelers relies on the 2020 Certificate of Liability Insurance and Section 1.1 of the
Prime Contract, which states that LI Electric is a “wholly owned subsidiary” of PSEG. (Id. at 5
(citing ECF No. 28-8 at 33; Prime Contract § 1.1, ECF No. 28-21 at 55).) In support of its
argument that PSEG is an agent and/or assign of LI Lighting, Travelers relies on the 2020
Certificate of Liability Insurance and Section 4.15 of the Operations Services Agreement, which
sets out the circumstances under which PSEG acts as an agent of LI Lighting. (Id. (citing 2ECF
No. 28-8 at 33; Operations Services Agreement § 4.15, ECF No. 28-19).)
On reply, Admiral argues that the 2020 Certificate of Liability Insurance—which, it

argues, “does not even refer to PSEG”—is not properly considered as extrinsic evidence to the
Prime Contract and the Subcontract because there has been no finding that the text of the
contracts are ambiguous. (Def.’s Reply ISO MSJ at 5, 9.) Admiral also reiterates its argument
that the 2020 Certificate of Liability Insurance was executed after the motor vehicle accident that
gave rise to this dispute such that it cannot act as a “written insured contract” that requires
additional insured coverage under the Admiral Policy. (Id. at 5–6.) As to Haugland, Admiral
contends that “[S]ection 14 the Prime Contract does not require that [Haugland] be named as an
additional insured under any policy of insurance,” and that Travelers has not “argued that
Haugland is a subsidiary, affiliate, successor, or assign of” LI Lighting. (Id. at 8.) As to PSEG,
Admiral argues that the record shows that “PSEG is the parent company of [LI Electric],” and
Section 14.3 “does not afford additional insured status to [LI Electric’s] parent corporations.”
(Id.) Admiral also argues that Travelers “has put forth no admissible evidence that PSEG is a
‘subsidiary,’ ‘affiliate,’ ‘successor,’ or ‘assign’ of [LI Electric or LI Lighting]” and that it could

not because “the evidence is to the contrary.” (Id. at 8–9.)
Section 14.3 of the Prime Contract, which addresses Haugland’s obligations to obtain
additional insured coverage, states:
[a]ll liability insurance policies shall name [LI Lighting and LI Electric], their
successors and assigns, as well as their agents, servants, representatives,
employees, shareholders, successors, and assigns, as additional insured on a
primary and non-contributory basis and [Haugland] shall maintain the required
coverage, naming the [LI Lighting and LI Electric] as well as their agents,
servants, representatives, employees, shareholders, successors, and assigns as an
additional insured, for a period of not less than three (3) years from the date the
Company accepts the Work. The following language should be used when
referencing the additional insured status: Long Island Lighting Company d/b/a
LIPA and Long Island Electric Utility Servco LLC, as well as their subsidiaries
and affiliates, and their respective successors and assigns shall be named as
additional insured.
(Prime Contract § 14.3, ECF No. 28-20 at 16 (emphasis supplied).)
As an initial matter, I decline to adopt Admiral’s reading of Section 14.3 for two reasons.
First, Admiral has not shown that the two sentences of Section 14.3 conflict. (See Def.’s Mem.
ISO MSJ at 14 (arguing that “to the extent that there is a conflict between the first and second
sentences of” Section 14.3, the second sentence governs).) Second, Admiral’s approach would
read out the first, long sentence of Section 14.3, which contains the following terms not repeated
in the second sentence: agents, servants, representatives, employees, and shareholders. “It is a
well settled principle of contract law that a court should not adopt a construction of a contract
which will operate to leave a provision of a contract without force and effect.” Piccirilli v.
Yonaty, 167 N.Y.S.3d 621, 624 (N.Y. App. Div. 2022) (“An interpretation that gives effect to all
the terms of an agreement is preferable to one that ignores terms or accords them an
unreasonable interpretation.”). Therefore, I decline to adopt Admiral’s reading of Section 14.3
and will consider whether Haugland or PSEG qualifies as an additional insured under the entire
provision as a matter of law.

A. Haugland is not Entitled to Additional Insured Coverage Under Section 14 of
the Prime Contract.
The plain text of Section 14.3 shows that Haugland is not listed among the entities that
must be covered as additional insureds under that provision. The only evidence that Travelers
cites in an attempt to raise a question of fact that Haugland is “encompassed” by Section 14.3 is
the 2020 Certificate of Liability Insurance. (Pl.’s Opp’n to MSJ at 4–5 (arguing that the 2020
Certificate of Liability Insurance “expressly identifies Haugland as an additional insured”).)
Because Travelers does not argue or establish that the Prime Contract is ambiguous, I do not
consider extrinsic evidence, including the 2020 Certificate of Liability Insurance, in interpreting
the language of the Prime Contract. See Long Island Minimally Invasive Surgery, 212 N.Y.S.3d
at 704. Reviewing the record in the light most favorable to Travelers and drawing all inferences
in its favor, I find that there is no question of fact that Haugland is not entitled to additional
insured coverage under Section 14.3 of the Prime Contract, and I grant Admiral summary
judgment on this issue.
I now consider whether the record demonstrates a genuine question of material fact as to
whether PSEG qualifies for additional insured coverage under the Prime Contract as an affiliate,

agent, assign, employee, representative, servant, shareholder, or subsidiary of LI Lighting or LI
Electric.
B. There is a Question of Fact as to Whether PSEG is an Affiliate of LI Electric.
The record reflects a question of fact as to whether PSEG is an “affiliate” of LI Electric
and, therefore, entitled to additional insured coverage under Section 14.3 of the Prime Contract.
The Prime Contract states that LI Electric is a “wholly-owned” subsidiary of PSEG. (Prime
Contract § 1.1, ECF No. 28-21 at 55.) The parties do not identify a definition of the term

“affiliate” in the Prime Contract. The ordinary and common meaning of “affiliate” is a person or
entity that is “closely associated with another typically in a dependent or subordinate position.”
Affiliated, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/affiliated
(last visited Sept. 16, 2024). It is unclear from the record whether, as its parent company, PSEG
is “closely associated” with LI Electric and therefore an “affiliate” such that it is entitled to
additional insured coverage under Section 14.3 of the Prime Contract. Therefore, I deny Admiral
summary judgment on its argument that PSEG is not an affiliate of LI Electric.
C. PSEG is not an Agent of LI Lighting.
Travelers attempts to raise a question of fact as to whether PSEG is an “agent” of LI
Lighting under Section 14 of the Prime Contract by citing to Section 4.15 of the Operations

Services Agreement. (Pl.’s Opp’n at 5.) In response to the same argument made in Travelers’
affirmative Motion, Admiral argues that Travelers cannot rely on the Operations Services
Agreement because the version it submitted is inadmissible as it is not executed or accompanied
by an affidavit by a witness with personal knowledge about its execution. (Def.’s Opp’n to MSJ
at 13–14.) Because Travelers relies on the Operations Services Agreement in its opposition to
Admiral’s Motion, I will resolve the parties’ disputes as to the document’s admissibility.
The Operations Services Agreement meets the authentication standard because Travelers
has “produce[d] evidence sufficient to support a finding that the item is what the proponent
claims it is,” Fed. R. Ev. 901(a), such that “a reasonable juror could find in favor of authenticity
or identification,” El Gammal, 831 F. App’x at 542. Admiral does not elaborate on how the
Operations Services Agreement is not executed. To the extent that Admiral means that the
document is unsigned, Admiral is incorrect; the document is titled “Executed Version,” dated
December 21, 2013, and is signed by both parties to the contract, LI Lighting and PSEG.

Operations Services Agreement at 1, 98–99, ECF No. 28-19; see Execute, Black’s Law
Dictionary (12th ed. 2024) (defining “execute” as, among other definitions, “making (a legal
document) valid by signing”); 10 Ellicott Square Ct. Corp. v. Mountain Valley Indem. Co., 634
F.3d 112, 120 (2d Cir. 2011) (“New York courts employ the standard indicated by the definition
in Black’s, requiring that a contract be either signed or fully performed before it can be
considered executed.”). It is true that the Alzate Declaration does not offer sworn statements by a
witness with personal knowledge as to the document’s execution, but such statements are not the
only means of authenticating evidence. See, e.g., Rule 901(b)(4) (permitting consideration of the
“appearance, contents, substance, internal patterns, or other distinctive characteristics of the item,
taken together with all the circumstances.”) Moreover, Alzate attests that the Operations Services

Agreement is publicly available (Alzate Decl. ¶ 2 n.1), and my comparison of the version
submitted in support of Travelers’ Motion with the publicly available version does not reveal
discrepancies between the two.13 See Vayner, 769 F.3d at 130 (noting that “the proponent need
not rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the
evidence is what it purports to be.”). In light of the fact that the Operations Services Agreement
is signed by both parties, dated, marked executed, and publicly available, I find that it has met

13 Compare Operations Services Agreement, ECF No. 19 with Amended and Restated
Operations Services Agreement between Long Island Lighting Company d/b/a LIPA and PSEG
Long Island LLC (Dec. 31, 2013) (https://www.lipower.org/wp-
content/uploads/2016/10/OSA.pdf).
the authentication standard under Rule 901 and is therefore properly considered on summary
judgment.
Under the Operations Services Agreement, PSEG is engaged “as an independent
contractor []except where [PSEG] is appointed as [LI Lighting’s] agent.” (Operations Services

Agreement § 3.1(B), ECF No. 28-19 at 18.) The document states that PSEG is designated as LI
Lighting’s agent in the following circumstances:
(a) to enter into purchase, rental and other contracts on behalf of and for the
account of [LI Lighting] necessary or appropriate to properly operate and
maintain the T&D System and to maintain the records of [LI Lighting], and to
make such additions and extensions (other than those made pursuant to Section
4.2(A)(7)) hereof to the T&D System and (b) to enter into certain customer
related contracts under [LI Lighting’s] tariff, all as may be required from time to
time by [LI Lighting].
(Id. § 4.15, ECF No. 28-19 at 47.) In other words, PSEG’s authorization to act as LI
Lighting’s agent is limited to entering into certain contracts for specific purposes set out
in the agreement. Unless PSEG is entering into such contracts, it is not acting as LI
Lighting’s agent under the Operation Services Agreement.
Aside from the Operations Services Agreement, Travelers has not submitted any
evidence of PSEG entering into contracts in the course of its involvement in the events of
the underlying actions, let alone contracts for the specific purposes set out in the
Operations Services Agreement. Indeed, PSEG did not enter into the Prime Contract with
Haugland; LI Lighting did. Therefore, the record reflects no genuine question of material
fact that PSEG was not acting as an agent of LI Lighting pursuant to the Operations
Services Agreement such that it is entitled to additional insured coverage under the Prime
Contract. Accordingly, I grant Admiral summary judgment on this issue.
D. PSEG is not an Assign of LI Lighting.
Travelers attempts to raise a question of fact as to whether PSEG is an “assign” of LI
Lighting under Section 14 of the Prime Contract by citing to Section 4.15 of the Operations
Services Agreement. (Pl.’s Opp’n at 5.) Section 4.15 does not refer to or describe any “assign” of
LI Lighting at all, let alone establish that PSEG is an assign of LI Lighting. (See Operations

Services Agreement § 4.15, ECF No. 28-19 at 47.) Because the record reflects no genuine
question of material fact as to whether PSEG is an assign of LI Lighting, I grant Admiral
summary judgment on its argument that PSEG is not an assign of LI Lighting.
E. There is a Question of Fact as to Whether PSEG is a Shareholder of LI
Electric.
The record shows a question of fact as to whether PSEG is a “shareholder” of LI Electric.
Under Attachment 3 Section 1.1 of the Prime Contract, LI Electric is a “wholly-owned
subsidiary” of PSEG. (Pl.’s Opp’n at 5 (citing Prime Contract § 1.1, ECF No. 28-21 at 55).) The
term “wholly-owned subsidiary” is not defined in the Prime Contract. According to the SEC, a
“wholly-owned subsidiary” “means a subsidiary substantially all of whose outstanding voting
shares are owned by its parent and/or the parent’s other wholly owned subsidiaries.” 17 C.F.R.
§ 210.1-02(aa). Since LI Electric is a “wholly-owned” subsidiary of PSEG, PSEG and/or one or
more of PSEG’s other wholly owned subsidiaries owns substantially all of LI Electric’s
“outstanding voting shares.” Therefore, there is a question of fact as to whether PSEG is a
“shareholder” of LI Electric and is, as a result, entitled to additional insured coverage under
Section 14.3 of the Prime Contract. Accordingly, I deny Admiral summary judgment on this

point.
F. PSEG is not a Subsidiary of LI Electric.
As discussed, the Prime Contract states that LI Electric is a “wholly-owned” subsidiary of
PSEG. (Prime Contract § 1.1, ECF No. 28-21 at 55.) As a result, PSEG does not qualify for
additional insured coverage under Section 14.3 of the Prime Contract as a subsidiary of LI
Electric. Therefore, I grant Admiral summary judgment on this issue.

G. There is a Question of Fact as to Whether PSEG is a Representative of LI
Lighting or LI Electric.
Travelers submits no evidence to raise a question of fact as to whether PSEG is an
employee, representative, or servant of LI Lighting or LI Electric such that it qualifies for
additional insured coverage. (See generally Pl.’s Opp’n to MSJ.) The parties do not identify a
definition of these terms in the Prime Contract. Based on my review of the record, I see no
question of fact as to whether PSEG is an employee or servant of LI Lighting or LI Electric. The
record does, however, raise a genuine question of material fact as to whether PSEG is a
representative of LI Electric based on the fact that it is the parent company of LI Electric.
Therefore, I grant Admiral summary judgment on the point that PSEG is not an employee or
servant of LI Lighting or LI Electric and deny it on the point that PSEG may be a representative
of LI Electric by virtue of being its parent company.
V. A Determination on Admiral’s Duty to Indemnify Haugland or PSEG is
Premature.
Admiral also moves for summary judgment on the duty to indemnify, arguing that it is
under no duty to indemnify Haugland or PSEG absent a determination that those entities are
additional insureds. (Def.’s Mem. ISO MSJ at 15–16.) In the alternative, Admiral argues that if I
find that it has a duty to defend Haugland and/or PSEG, a finding as to the duty to indemnify is
premature until there is a determination of fault in the underlying actions. (Id.)
As discussed above, there are genuine questions of material fact that preclude summary
judgment on a determination that Haugland and PSEG are additional insureds under the Admiral
Policy, which is a threshold issue to whether Admiral has a duty to indemnify those parties. See
supra Discussion, Section III. Genuine questions of material fact also preclude summary

judgment on a determination that PSEG is entitled to additional insured coverage under Section
14 of the Prime Contract. See supra Discussion, Section IV.B, IV.E, IV.G. Therefore, a
determination of Admiral’s duty to indemnify is premature. Accordingly, I deny without
prejudice Admiral’s Motion for Summary Judgment on the duty to indemnify.
CONCLUSION
For the reasons stated above, genuine questions of material fact preclude a determination
as to whether Haugland and PSEG are additional insureds under the Admiral policy issued to 4
Cut and as to whether PSEG is entitled to additional insured coverage under Section 14 of the
Prime Contract as an “affiliate,” “shareholder,” or “representative” of LI Electric. I also find that

Haugland is not entitled to additional insured coverage under Section 14 of the Prime Contract.
Accordingly, I deny Travelers’ partial Motion for Summary Judgment (ECF No. 28) and grant in
part and deny in part Admiral’s Motion for Summary Judgment (ECF No. 31).

Dated: Central Islip, New York
September 19, 2024
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659458. Public record. Not legal advice.