Goldberg Segalla partner Ashlyn M. Capote authored an article analyzing the evolving landscape of additional insured coverage and risk transfer litigation in New York following the landmark Court of Appeals decision in Burlington Insurance Co. v. NYC Transit Authority.

Drawing on a broad survey of recent state and federal decisions, Ashlyn explores how courts continue to navigate insurers’ obligations to defend and indemnify additional insureds in construction-related claims.

As risk transfer remains a critical component of New York construction and Labor Law litigation, disputes frequently arise when owners and general contractors seek additional insured coverage under subcontractors’ liability policies. Ashlyn’s article focuses on how courts evaluate those coverage obligations, particularly when questions of liability and causation have not yet been resolved in the underlying lawsuit.

The article examines the distinction between an insurer’s duty to defend and duty to indemnify, emphasizing that New York courts continue to view the duty to defend as exceptionally broad. Ashlyn highlights recent decisions confirming that insurers generally cannot rely on facts outside the underlying complaint to deny a defense obligation where there remains a reasonable possibility of coverage.

Ashlyn explains that courts routinely require insurers to provide a defense to additional insureds even where insurers believe their named insured ultimately will not be found responsible for the accident. Instead, courts often conclude that questions regarding fault and liability are more appropriately addressed when determining whether indemnification is owed.

Ashlyn also analyzes how post-Burlington decisions have reinforced the principle that indemnity determinations generally depend on factual findings regarding whether the named insured’s acts or omissions proximately caused the underlying injury. As a result, many courts decline to issue definitive rulings on indemnity until the underlying tort action has been resolved.

The article further explores circumstances in which courts have considered the specific reasons a named insured was dismissed from an underlying action, noting that not every dismissal automatically precludes additional insured coverage. Rather, courts frequently undertake a detailed review of the underlying facts and procedural history before reaching coverage conclusions.

In closing, Ashlyn underscores that while questions of liability may ultimately determine whether indemnification is available, they often have little impact on the broad duty to defend that insurers owe additional insureds under New York law.

“Because most additional insured endorsements only extend coverage for liability caused, in whole or in part, by the named insured’s acts or omissions, how an underlying accident occurred and the named insured’s alleged role is important in determining whether additional insured coverage is triggered,” Ashlyn writes. “However, the fact that a named insured may not be liable for the accident generally has little bearing on whether an insurer may owe a duty to defend an additional insured under its named insured’s policy.”

READ THE FULL ARTICLE HERE: “Risk Transfer in New York Post-‘Burlington’: The Impact of Liability Determinations on an Insurer’s Duty to Defend and Indemnify an Additional Insured,” New York Law Journal, August 6, 2026 (Subscription required)

MORE ABOUT GOLDBERG SEGALLA’S ASHLYN M. CAPOTE:

Ashlyn advises insurers on complex coverage matters and handles insurance coverage litigation throughout New York State. She manages all aspects of coverage litigation, from pleadings and discovery to mediation and settlement negotiation.

Ashlyn regularly counsels clients on their obligations to provide coverage to insureds under their policies and their ability to seek additional coverages on behalf of their insureds. She frequently provides advice regarding coverage obligations related to liability policies, including issues related to additional insured coverage, priority of coverage, construction defects, environmental coverage, and Coverage B. She also routinely provides guidance regarding first-party coverage issues including those related to COVID-19 and catastrophic coverage claims resulting from natural disasters. She frequently publishes and speaks on these issues as well.