OGC Op. No. 04-09-09
The Office of General Counsel issued the following opinion on September 16, 2004 representing the position of the New York State Insurance Department.
Re: Contractors General Liability, Exclusion of Injury to Employees
Questions Presented:
1. Is the exclusion for injuries to employees in the general contractors general liability policy issued by ABC Insurance Company valid?
2. Must the owner of the building, who is an additional insured under the policy, be notified of such an exclusion.
Conclusion:
1. The exclusion for injuries to employees in the general contractors general liability policy issued by ABC Insurance Company is valid.
2. There is no provision in the New York Insurance Law that requires the additional insured to be notified of such an exclusion.
Facts:
An attorney represents a worker, employed by a general contractor, injured on a job site at a building in New York. The attorney advises that the owner of the building was listed as an additional insured on the general contractors general liability policy that was issued by ABC Insurance Company. However, a policy endorsement excludes injuries to employees of the general contractor and subcontractors.
Analysis:
N.Y. Ins. Law § 2307(b) (McKinney Supp. 2004) provides in relevant part:
Except as otherwise provided herein, no policy form shall be delivered or issued for delivery unless it has been filed with the superintendent and either he has approved it, or thirty days have elapsed and he has not disapproved it as misleading or violative of public policy.
An endorsement is a policy form that contains material that becomes part of an insurance policy. Thus, an insurer may not use an endorsement to add, amend, expand, or otherwise alter the terms of an insurance policy unless the endorsement form has previously been filed and approved by the Insurance Department, subject, however, to exceptions that are inapplicable here.
The Department approved the subject endorsement on November 3, 2000, in accordance with Section 2307. This approval indicates that the New York State Insurance Department found the endorsement acceptable and not misleading or against public policy.
Therefore, the exclusion for injuries to employees in the general contractors general liability policy issued by ABC Insurance Company is valid. In addition, there is no provision in the New York Insurance Law that requires the additional insured to be notified of such an exclusion.
For further information you may contact Special Counsel Athan M. Shinas at the Albany Office.