In Westview Associates, et al v. Guarantee National Insurance Company, et al, 95 N.Y.2d 334, 740 N.E.2d 220 717 N.Y.S.2d 75 (2000), the Court of Appeals found that the additional coverage provision of the defendant's umbrella liability policy extended coverage to injuries sustained from lead paint exposure even though a lead paint exclusion was contained within the underlying liability policy.

The Court noted that although the umbrella policy contained specific exclusions for certain types of injuiries that included pollution, the defendant-insurer did not meet its burden of showing that lead paint was within the scope of the pollution exclusion of the umbrella policy.

The Court of Appeals, in Regal Constr. Corp. v. Natr'l Union Fire Ins. Co. of Pittsburgh, PA, 2010 WL 219252 (June 3, 2010), considered whether URS, the entity that contracted with New York City to manage construction of the Riker's Island Renovation Project, was entitled to defense and indemnification under the terms of the additional insured provision of the CGL policy from Regal Construction Corporation, the primary contractor for the project hired by URS.

The Court found that the additional insured endorsement, which provided that URS was an additional insured of Regal Construction Corporation for liability that arose from Regal Construction Corporation's ongoing operations, required Regal Construction Corporation to defend and indemnify URS in an underlying personal injury action.

The Court interpreted the "arising out of" language in the additional insured provision to mean "originating from, incident to, or having connection with." Regal Constr. Corp., 2010 WL 2195252, at *1. Based on this interpretation, the Court found that Regal was obligated to defend and indemnify URS in the underlying personal injury action because "the injury was sustained by Regal's own employee while he supervised and gave instructions to a subcontractor regarding work to be performed," and therefore arose out of Regal's operations. Id.

Prepared by Kimberly S. Conidi