First Department Holds That, Regardless of Whether A Judicial Admission is Deemed Formal or Informal, Coverage Cannot Be Created Where None Existed

In GJF Constr., Inc. v. Sirius Am. Ins. Co., 2011 NY Slip Op 08630 [2011], the First Department held that correspondence between attorneys that “admitted” GJF was an additional insured will not create coverage that otherwise did not exist. In response to plaintiff’s letter asking for confirmation of coverage for GJF or a deposition date for an underwriter, defense counsel responded that GJF was a covered insured. In reality, however, GJF was not “on file” with the insurer as required by the additional insured endorsement to the policy. Despite the “judicial admission” of coverage, GJF could not benefit from counsel’s error. Interestingly, the court issued a brief opinion affirming the decision below, but also two concurring opinions, making the decision unanimous as to the outcome but 2-2 on a question of law.

In dueling concurring opinions, the justices disagreed about whether the letter from defense counsel constituted a “formal” judicial admission like a statement in a stipulation or an “informal” judicial admission like a statement in an affidavit. Also, in one concurring opinion, justices argued that notifying an insurer 51 days after first notice of the incident underlying the claim was inexcusable as a matter of law.