Insurer Must Defend and Indemnify Insured Because of Indemnity Agreement in Construction Contract

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The Metropolitan Transit Authority and Long Island Railroad (collectively, “LIRR”), and Admiral Insurance Company (“Admiral”), appeal from the March 3, 2020 judgment of the United States District Court for the Southern District of New York (Furman, J.), granting declaratory judgment in favor of Century Surety Company (“Century Surety”) based upon its January 29, 2019 Memorandum Opinion and Order. In Century Surety Company v. Metropolitan Transit Authority, Long Island Railroad, Admiral Insurance Company, Rukh Enterprises, Inc., Marcelo DeJesus, No. 20-1474-cv, United States Court of Appeals, Second Circuit (October 5, 2021) the insurer’s claim that it was excess ignored the indemnity agreement signed by its insured.

ZALMA OPINION

Other insurance clauses are important contractual terms to allow multiple insurers to decide which insurer is obligated to defend and indemnify the insured and in what order. In this case Century Surety claimed that its “other insurance” clause controlled making it excess to all other insurers while the other insurers, and the Second Circuit, found that the construction contracts’ indemnity agreement controlled before the other insurance clauses came into effect. In the Second Circuit it is important to have insurance and indemnity agreements in every construction contract to control the risk transfer.