The Court of Appeals in Burlington Ins. Co. v. NYC Transit Authority correctly refused to apply a negligence trigger with regard to the meaning of “caused, in whole or in part, by” in the additional insured context respecting an indemnity trigger. See Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313, 317 (2017).

The difference, of course, in the New York Labor Law environment is that Labor Law §§240(1) and 241(6) provide for vicarious fault which may be a proximate cause of an injury without negligence. Although the Court held that coverage was to be provided to the additional insured where the named insured’s acts or omissions were the proximate cause of the injury, some carriers may interpret it to refuse to provide even a defense pending a determination of the negligence findings at trial.

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