By Mark R. Vespole, Partner, Tressler LLP
If someone said that additional insured coverage was found to exist in a case in which there was no contract between the parties and the accident in question took place almost one week after snowplowing and sanding work was performed, you would think they were kidding. This case, Cottle v. Walgreens, No. A-1430-11T3, 2013 N.J. Super. Unpub. LEXIS 2059 (Aug. 19, 2013) [enhanced version available to lexis.com subscribers], is a textbook example of how a lawsuit for additional insured coverage can go unpredictably awry. The good news is that with more careful preparation and planning, this kind of result can probably be avoided.
This decision, which 99 times out of 100 would have a different result, illustrates the importance of understanding the precise language of the additional insured endorsement or policy language under which additional insured coverage is purportedly granted, because there are multiple forms of additional insured coverage which are not all created equal.
The commentary notes that perhaps more importantly, this case clearly exposes how the failure to conduct specific discovery with regard to the factual underpinnings that potentially trigger additional insured coverage can result in the kind of underdeveloped appellate record that results in an unanticipated appellate decision that perhaps could have been averted.
Mark Vespole is a partner based in the Newark office of Tressler LLP, a national insurance, financial services and litigation law firm. Mark focuses his practice on the counseling and representation of various financial institutions and corporations and their employees on corporate raiding, FINRA and SEC compliance, customer and industry securities arbitrations, insurance coverage, bad faith, professional liability, rescission actions, products liability, directors and officers, liability, business torts, construction, employment, toxic tort and general negligence defense litigation, as well as mediation and arbitration. Mark has been certified by the New Jersey Supreme Court as a civil trial attorney for the past 26 years and has also been a certified mediator. In addition, Mark has authored the LEXIS-NEXIS Practice Guide New Jersey Civil Discovery (2007-2013 Editions), co-authored the LEXIS-NEXIS Practice Guide New Jersey Pretrial Practice (2007-2013 Editions), co-authored LEXIS-NEXIS Practice Guide New Jersey Insurance Litigation (2008-2014 Edition) and wrote a chapter on expert witnesses for the LEXIS-NEXIS Practice Guide New Jersey Trial, Post-Trial and Appellate Proceedings (2007 Edition). Additionally, Mark has been selected for inclusion in the 2005, 2006, 2007, 2009, 2010, 2011, 2012 & 2013, New Jersey Super Lawyers®.
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