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I. APPELLATE DIVISION AFFIRMS ORDER GRANTING SUMMARY JUDGMENT BASED UPON DOCTRINE OF PRIMARY ASSUMPTION OF RISK. Recently, Gregory V. Pajak of our office represented the defendants in Cook v. Komorowski, 752 N.Y.S.2d 475 (App.Div. 4th Dept., 2002). In Cook, the plaintiff sought damages for an eye injury sustained during a game of splatball. The plaintiff was injured by a paint pellet fired by our client, Jeffrey Komorowski. The lower court granted our motion for summary judgment which was based on the doctrine of primary assumption of risk. This doctrine essentially holds that when an individual engages in a sport or other recreational activity, that individual thereby consents to the commonly appreciated risks which are associated with and arise from the activity in question. The lower court in granting our motion for summary judgment, ruled that we had met our burden in establishing that the activity of splatball inherently involves the risk of eye injury and that the plaintiff was aware of that risk. On appeal, the Appellate Division, Fourth Department adopted our argument. The plaintiff contended that the assumption of risk defense did not apply since being shot by a splatball in the eye was not a commonly appreciated risk. The Appellate Court dismissed the plaintiff's contention holding that a jury could not reasonably accept the plaintiff's argument. The Appellate Division opined that it is not necessary for the defendants to establish that the plaintiff foresaw the precise manner in which the injury occurred. Furthermore, the Appellate Division held that nothing in the record demonstrated that the defendant's conduct was reckless, which would have rendered the doctrine of assumption of risk inapplicable. II. COVERAGE FOR AN ADDITIONAL INSURED IS PRIMARY UNLESS UNAMBIGUOUSLY STATED OTHERWISE. Pecker Iron Works of New York, Inc. v. Traveler's Insurance Company, ___ N.Y.2d ___ [2003], decided by the Court of Appeals of New York on February 13, 2003, establishes the basis upon which an additional insured's coverage is primary or excess insurance coverage. Pecker Iron Works, a subcontractor, retained the services of Upfront Enterprises as a sub-subcontractor to provide labor, materials and equipment. Upfront provided Pecker Iron Works with certificates of insurance for liability and workers' compensation coverage, naming Pecker Iron Works as an additional insured. The defendant, Travelers Indemnity Co., was the carrier for Upfront and provided coverage for Upfront and any additional insureds designated by Upfront. The Traveler's policy indicated that coverage for additional insureds would be excess unless Upfront provided for the coverage to be primary in a written contract between Upfront and the additional insured. An injured Upfront worker brought suit against the property owner and general contractor. These individuals then commenced a third party action against Pecker Iron Works, as the general contractor for Upfront. Pecker Iron Works made a claim with Traveler's Indemnity Co. based upon its status as an additional insured under Upfront's policy. Traveler's disclaimed coverage, taking the position that the coverage provided to Pecker Iron Works as an additional insured was excess. Pecker Iron Works then commenced a declaratory judgment action against Traveler's Indemnity Co. Initially, the Supreme Court granted Traveler's motion to dismiss on the theory that the policy provided only excess coverage and that the contract between Pecker Iron Works and Upfront did not specifically designate the coverage to Pecker Iron Works as primary. The Appellate Division reversed, holding that the designation of Pecker Iron Works as an additional insured in the contract with Upfront did not indicate that Pecker Iron Works would receive only excess coverage. The Court of Appeals in affirming the decision of the Appellate Division held that coverage for additional insureds is primary coverage unless it is unambiguously stated otherwise. The Court of Appeals reasoned that an additional insured is an entity afforded the same coverage as the named insured. |