Opinion
March 10, 1992
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Defendant Continental's certificate of insurance naming plaintiff Morrison-Knudsen Company, Inc. (MKI) as an additional insured for the one year period commencing September 27, 1985, some 10 days before the injury to defendant Best's employee, constitutes evidence of Continental's agreement to insure MKI, but it is neither conclusive proof of the existence of such a contract nor, in and of itself, a contract to insure MKI (see, Bucon, Inc. v Pennsylvania Mfg. Assn. Ins. Co., 151 A.D.2d 207, 210; Hartford Acc. Indem. Co. v Transamerica Ins. Co., 141 A.D.2d 423). The conflict between the certificate of insurance and the endorsement with respect to the effective date of coverage, and Continental's unexplained provision of a defense to Riverbay, an additional insured on the same certificate as MKI, raises an issue of fact as to whether MKI was insured by Continental at the time of the accident.
The IAS court also correctly held that because the personal injury action brought by Best's employee was settled by the parties before entry of judgment, MKI's claim against Best for contractual indemnification is not barred, as a matter of res judicata, by the intermediate order made in that action denying indemnification (Peterson v Forkey, 50 A.D.2d 774; Ott v Barash, 109 A.D.2d 254). As this Court stated in Peterson (supra, at 775), "[t]he settlement of the previous case prior to the entry of judgment operated to finalize the action without regard to the validity of the original claim, and the action was accordingly considered, in contemplation of law, as if it had never been begun" (citing Yonkers Fur Dressing Co. v Royal Ins. Co., 247 N.Y. 435, 444).
We have considered the remaining arguments and find them to be without merit.
Concur — Carro, J.P., Milonas, Wallach, Ross and Rubin, JJ.