Additional Insureds – Who Are They and How Do They Get Coverage?

Richard Ejzak | Cohen & Gigsby | August 24, 2018

Who is entitled to coverage under an insurance policy?  The question is simple, but the answer sometimes is not. Obviously, any company that the policy identifies as a “Named Insured” is covered, as are companies and individuals that the policy specifically identifies as insureds, either by name or by their connection to the named insured (such as subsidiary companies, shareholders or officers/directors of the named insured).

But what about companies that are not identified in the policy?  For example, a subcontractor might have to extend coverage under its policy to a general contractor or owner as a condition for obtaining work. Or a tenant might have to add a landlord to its policy under the terms of a lease. In those situations, the subcontractor or tenant can extend coverage to additional parties by obtaining an endorsement from the insurer. If drafted properly, the endorsement should eliminate or at least minimize any uncertainty about the coverage the additional party will receive under the policy.

The picture is less clear if there is not an endorsement specifically naming a party as an additional insured. Liability policies frequently contain two provisions – the definition of the “Insured” and the so-called vendor endorsement – that can extend coverage automatically to parties unrelated to the policyholder under certain circumstances.

Definition of the “Insured”

When defining who is an “Insured,” liability policies often include any company for whom the policyholder has agreed by contract to provide coverage. Because such a provision relies on the terms of a contract between the policyholder and an unrelated third party, it is extremely helpful if the contract clearly identifies the limits and scope of coverage that is to be provided. Courts have enforced contracts that include such terms.

When a contract requires a party to provide insurance for another party (as in the subcontractor/general contractor or tenant/landlord scenarios mentioned above), the contract also might require the party to provide a certificate of insurance to the other party. Many certificates expressly state that they are issued as a matter of information only and do not confer any rights on the holder. Notwithstanding this disclaimer, the coverage available to a party who holds a certificate of insurance depends on the language in the certificate, the facts of the case and the jurisdiction in which the case is pending.

Contracts that require a policyholder to provide insurance coverage for another party also commonly require the policyholder to indemnify the other party. It is important for the parties to consider whether they want to synchronize the two requirements so that the duty to indemnify is coextensive with the duty to provide coverage. For example, if the contract limits the duty to indemnify to liabilities arising solely from the conduct of the policyholder, the parties might (or might not) want the contract to impose the same limit on the insurance coverage the policyholder must provide to the other party.

Vendor Endorsement

The vendor endorsement typically amends the policy definition of “insured” to include distributors or wholesalers of a manufacturer. Where a manufacturer’s liability policy includes a vendor endorsement, a vendor might be entitled to coverage under the policy even if the manufacturer is not contractually required to provide insurance for the vendor. Because coverage can apply automatically to vendors without the insurer’s knowledge, the vendor endorsement usually contains language that purports to limit the coverage available to the vendor. For example, a standard vendor endorsement states that coverage does not apply to bodily injury or property damage arising out of changes the vendor makes to the condition of the manufacturer’s product.

The existence and scope of insurance coverage can dramatically alter the fortunes of policyholders and the companies with whom they interact either through contract or by virtue of vendor relationships. For that reason, it is important to be aware of insurance provisions that can automatically extend coverage to parties who are not named in the policy.

Is Being Named As An “Additional Insured” On An Insurance Endorsement Sufficient To Provide

Henry L. Goldberg and Michael J. Hogan | Moritt Hock & Hamroff | August 22, 2018

The New York Court of Appeals (New York’s highest court) recently held that being named as an additional insured on a Certificate of Insurance might not, by itself, provide any coverage for additional insureds.

The Dormitory Authority of the State of New York (“DASNY”) contracted with general contractor Samson Construction Company (“Samson”) for construction of a new forensic laboratory for New York City. DASNY also contracted with a joint venture between Gilbane Building Company and TDX Construction Corporation (hereinafter, “Gilbane JV”) for Gilbane JV to be the construction manager on the project. DASNY’s contract with Samson provided that Samson would obtain general liability insurance for the job, with an endorsement naming as additional insureds as follows: “DASNY, the State of New York, the Construction Manager, Gilbane JV, and other entities specified on the Sample Certificate of Insurance provided by DASNY.” The Sample Certificate of Insurance listed as Additional Insureds under General Liability with respect to this project: … Gilbane/TDX Construction Joint Venture.” Samson obtained general liability insurance coverage from Liberty Insurance Underwriters (“Liberty”).

DASNY sued Samson and Perkins Eastman, Architects, P.C. (Perkins) (the project architect), alleging that Samson damaged the excavation support system in August of 2003 by negligently removing a section of steel plating which caused the foundation of the neighboring building to settle several inches. Perkins then commenced an action against Gilbane JV. Gilbane JV provided notice to Liberty, seeking defense and indemnity under the Liberty policy. Liberty denied coverage. Gilbane JV commenced a lawsuit, alleging that it qualified for coverage under the Liberty policy as “an additional insured.” The lower court denied Liberty’s motion for summary judgment, holding that Gilbane JV was an additional insured under the policy. The Appellate Division subsequently reversed the decision, granting Liberty’s motion for summary judgment, and the matter was appealed to the Court of Appeals.

The critical portion of the Liberty policy was the “Additional Insured-By Written Contract” provision, which read:

“WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you.”

Gilbane JV had no written contract with Samson naming Gilbane JV an additional insured, but argued that no such contract is necessary as that requirement would conflict with the plain meaning of the Liberty endorsement, as well as “well-settled rules of policy interpretation” and the parties’ reasonable expectations. The Court of Appeals concluded that Gilbane JV’s argument was meritless; the endorsement is facially clear and does not provide for coverage unless Gilbane JV is an organization “with whom” Samson has a written contract.

The Court of Appeals found that the endorsement would have the meaning Gilbane JV desired if the word “with” had been omitted. Omitting “with”, the phrase would read: “… any person or organization whom you have agreed by written contract to add …” and Gilbane JV’s position would have had merit. But, the Court of Appeals pointed out Samson and Liberty included the “with” in the contract between them, and it must be given its ordinary meaning. The “with”, in the Court’s opinion, can only mean that the written contract must be “with” the additional insured. The Court of Appeals found the endorsement’s meaning to be plain and unambiguous.

Gilbane JV attempted to offer extrinsic materials, including the sample certificate of insurance, in support of its argument that it reasonably expected to be covered by the policy, and relied heavily on the contract between DASNY and Gilbane JV, which required Samson (as the prime contractor) to name Gilbane JV as an additional insured on all liability policies obtained by Samson. This approach was rejected by the Court of Appeals, holding that “[e]xtrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous, which is an issue of law for the courts to decide.” The Court of Appeals concluded that Gilbane JV might have a claim against Samson for failing to obtain additional insured status for Gilbane JV, but that breach would not permit the Court to rewrite Samson’s contract with Liberty.

MH&H Commentary

Clearly, based upon the foregoing Court of Appeals decision, being named as an additional insured on an Insurance Certificate does not convey coverage to the named insureds in all instances. In order to guarantee coverage, the “additional insurance” provision or endorsement itself must be obtained and reviewed. If such provision or endorsement contains the controversial “with” (as the Liberty provision did) there must be a written contract between the additional insured and the contract holder (insured) of the General Liability Policy for coverage to exist.

Additional Insured Coverage and Primary/Excess Priority Disputes, Oh My

James W. Bryan | Nexsen Pruet | July 19, 2018

Additional insured coverage in construction projects is one of the most vexing issues facing insurance coverage lawyers. Add to the complexity a priority dispute between primary and excess insurers and you have a recipe for complex coverage litigation. Recently, the Fourth Circuit tackled these issues in the North Carolina case, Continental Casualty Company v. Amerisure Insurance Company, 886 F.3d 366 (4th Cir. 2018). The end result was not a good one for Amerisure. Amerisure, with its primary policy, got it wrong on the duty to defend additional insureds and with its excess policy, also got it wrong on the duty to indemnify. Continental obtained a judgment for over $2.3 million.


In Continental, the general contractor building a hospital near Charlotte, North Carolina entered into a subcontract with a supplier/builder of the steel infrastructure. This first-tier subcontractor in turn entered into a subcontract with an erector of the steel structure, a second-tier subcontractor. During his work on the project, Dustin Miller, an employee of the second-tier subcontractor, suffered severe injuries when he tripped and fell 30 feet to the ground after his safety cable broke. At the time of the accident, the second-tier subcontractor held both commercial general liability (“CGL”) and umbrella insurance policies issued by Amerisure (the “Amerisure policies”). As required by the subcontract between first-tier and second-tier subcontractors, the Amerisure policies included the general contractor and first-tier subcontractor as “additional insureds” and provided minimum coverage limits of $2.0 million. The CGL policy provided a limit of liability of $1,000,000 per occurrence and the umbrella policy provided an additional $5,000,000 per occurrence. Additionally, the subcontract between first-tier and second-tier subcontractor stated “the insurance required of [second-tier subcontractor] must be primary and noncontributory with [first-tier subcontractor’s] Insurance program.” (Emphasis added).

In addition to its “additional insured” status under Amerisure’s policies, first-tier subcontractor held its own CGL policy issued by Continental, which included an “additional insured” endorsement covering the general contractor. The general contractor also was insured under the hospital’s “rolling owner controlled insurance program” (“ROCIP”), which provided coverage under policies issued by a separate provider. Although the terms of the ROCIP required participation by all tiers of contractors, participation was not automatic, and the general contractor did not enroll either the first-tier or second-tier subcontractor in the ROCIP. Instead, as required by an additional provision of the ROCIP, these unenrolled subcontractors maintained their own insurance coverage as previously described.

Underlying Action

As a result of the accident, Miller sued the general contractor and first-tier subcontractor for: failure to provide a safe work environment; failure to ensure that their subcontractors followed certain safety measures; failure to properly inspect certain safety features; failure to control and supervise the workplace; and failure to warn subcontractors about the lack of safety measures. Continental agreed to provide a defense to the first-tier subcontractor and the general contractor under a reservation of rights, but Amerisure declined to provide a defense, asserting coverage was barred pursuant to a controlled insurance program exclusion (“CIP exclusion”) in the Amerisure policies.

Declaratory Judgment Action

After settling the action for $1.7 million, Continental filed this declaratory judgment action in the United States District Court for the Western District of North Carolina, seeking a declaration that Amerisure be required to reimburse Continental for the entire settlement and for all of Continental’s defense costs. On motions for summary judgment, the district court held that Amerisure had breached its duty to defend the underlying action and that, under the terms of Amerisure’s policies, Amerisure was liable to reimburse Continental for the $1.7 million settlement. Finding “[e]quity dictates that the defense costs be shared equally among the two insurers,” the court ordered Amerisure to reimburse Continental for half the associated costs and fees.

Issue #1: Controlled Insurance Program Exclusion

On appeal, the first issue addressed by the Fourth Circuit was whether the CIP exclusion in the Amerisure policies excused it from defending the underlying action. The exclusion states, “This insurance does not apply to ‘bodily injury’ … arising out of … [second-tier subcontractor’s] ongoing operations … if such operations were at any time included within a ‘controlled insurance program’ for a construction project in which [second-tier subcontractor] [is] or [was] involved.” The Fourth Circuit focused on whether the “arising out of” condition was met. Under North Carolina law, courts must strictly construe the phrase “arising out of” when that phrase appears in a policy exclusion. Thus, coverage will not be denied where there is more than one cause of an injury and only one cause is excluded. Under the plain language of the CIP exclusion, only injuries arising from second-tier subcontractor’s operations were excluded, but injuries allegedly arising out of the operations of the general contractor or first-tier subcontractor were not excluded. At the time of Miller’s accident, he unquestionably was performing work for his employer while installing metal decking. However, Miller’s complaint alleged more than one potential cause of his injuries. Numerous allegations in his complaint rested on the failures of general contractor and first-tier subcontractor with respect to their supervisory role over second-tier subcontactor’s operations and safety procedures. Miller also alleged that general contractor and first-tier subcontractor, independently from second-tier subcontactor, failed to provide adequate safety equipment and procedures, causing Miller’s injuries. Regardless of the actual cause of those injuries, at the time Amerisure refused to defend the action, the allegations presented a distinct possibility that Miller’s injuries arose from the operations of the other contractors. Because Miller’s injuries arguably “arose out of” operations other than those conducted exclusively by second-tier subcontactor, the condition of the CIP exclusion was not satisfied. Therefore, the district court did not err in concluding Amerisure breached its duty to defend against the underlying personal injury action.

Issue #2: Priority and Additional Insureds

Given Amerisure’s breach of the duty to defend, the second issue before the Fourth Circuit was whether Amerisure was liable to reimburse Continental for the full $1.7 million settlement. Amerisure argued its coverage was capped at the $1.0 million limit of the CGL policy and did not reach the umbrella layer. The court disagreed.

For starters, the court rejected the argument that the second-tier subcontractor did not agree to extend the umbrella coverage to the additional insureds (i.e. general contractor and first-tier subcontractor). Simply put, the Amerisure CGL policy provided that any “additional insured” under the policy, namely, the general contractor and first-tier subcontractor, were “automatically” insureds under the umbrella policy. Plus, the Amerisure umbrella policy stated: “We will have the right and duty to defend the insured against any ‘suit’ seeking damages for such ‘bodily injury’ … when the ‘underlying insurance’ does not provide coverage or the limits of the ‘underlying insurance’ have been exhausted.” This language plainly meant (1) coverage was triggered when the Amerisure CGL policy limit had been exhausted and (2) because the settlement amount of the action exceeded the $1,000,000 limit in the Amerisure CGL policy, the umbrella coverage necessarily was triggered. The court further rejected Amerisure’s argument that its coverage was capped at the CGL policy’s $1.0 million limit. The court pointed to the umbrella policy language that “the most we will pay on behalf of the additional insured is the amount of insurance required by the contract, less any amounts payable by the underlying insurance.” In support of this rejection, the court focused on the subcontract between the first-tier and second-tier subcontractors, which plainly required the second-tier subcontractor to obtain $1.0 million in CGL coverage and an additional $1.0 million in umbrella coverage. The subcontract also stated that first-tier and second-tier subcontractors “shall be named as additional insureds on” the CGL policy of second-tier subcontractor and plainly required that second-tier subcontractor obtain $2.0 million in “minimum” CGL and umbrella coverage “with additional insured endorsement.”

The court also rejected Amerisure’s argument that Continential’s CGL policy took priority over the umbrella policy of Amerisure based on the “other insurance” provisions of both policies. In other words, Amerisure believed the Continental CGL policy should be triggered before the Amerisure umbrella policy was triggered. The “other insurance” provision of the Continental CGL policy stated: “If other valid [ ] insurance is available to [first-tier and second-tier subcontractor] for a loss we cover … our obligations are limited as follows: [ ] Primary Insurance—This insurance is primary except when … [t]his insurance is excess over: [a]ny other primary insurance available to you.” On the other hand, the Amerisure umbrella policy’s “other insurance” provision stated that the policy was “excess over … any other insurance whether primary [or] excess.” The court noted that the Amerisure umbrella policy coverage was triggered when the limit of the “underlying insurance” was exhausted and only the Amerisure CGL policy was listed as “underlying insurance” in the policy declarations. Moreover, any ambiguity arising from consideration of the “other insurance” provisions is resolved by the terms of the subcontract between first-tier and second-tier subcontractor, which required Amerisure’s policies to be “primary and non-contributory” to all other insurance provided to first-tier subcontractor, including the Continental CGL policy. The court noted that the Amerisure policies plainly refer to and incorporate the terms of the subcontract in several respects. Thus, the court held that the Amerisure umbrella policy coverage was triggered immediately upon the exhaustion of the Amerisure CGL policy and that the Continental CGL policy did not take priority over that umbrella policy.

Issue #3: Defense Costs

The third and final issue addressed by the Fourth Circuit again arose because of Amerisure’s breach of the duty to defend, namely, whether Amerisure was required to reimburse Continental for the full amount of the costs and fees incurred by Continental ($660,700) in defending the Miller action. The court held yes, reversing the district court. Key to the Fourth Circuit’s holding was the Amerisure CGL policy language that coverage afforded to an additional insured shall be “primary and without contribution” from the additional insured’s own insurance. Further, under Continental’s CGL policy, “[w]hen this insurance is excess, we will have no duty … to defend the insured against any ‘suit’ if any other insurer has a duty to defend the insured against that ‘suit.’” Thus, Continental’s CGL policy establishes that Amerisure’s CGL policy was “primary” to Continental’s “excess” CGL policy. In other words, Continental did not have an independent duty to defend.


There are three takeaways from this decision. First, North Carolina strictly construes the “arising out of” wording in policy exclusions, which tends to weaken the exclusions. Not many other states follow such a rule. Second, where a contract requires one party to provide additional insured coverage for the other party, courts give great weight to the terms of that contract when assessing the extent and scope of additional insured coverage provided by the insurance policy itself. This clearly applies to a contract that requires such coverage to be “primary and non-contributory” in relation to coverage under another policy. Third, where one insurer provides a defense to an insured that another insurer should have provided, there is a risk the court will require the latter to pay all legal costs and expenses incurred by the former in the defense of the insured. This can happen particularly when, as in this Continental case, the latter insurer was required to provide “primary and non-contributory” coverage for additional insureds.

Got Additional Insured Coverage? Not If You Don’t Say the Magic Word

Harvey Nosowitz | Anderson & Kreiger LLP | April 24, 2018

Where a Lease Did Not Require the Additional Insured Coverage in the Lessee’s Policy To Be Primary, the Additional Insured Coverage Is Excess Over The Lessor’s Own Fronting Policy.

Businesses frequently seek to shift the risk of liability by including in contracts a requirement that they be named as an additional insured on the other party’s liability insurance policy. The road from contract negotiation to insurance payment, however, is a bumpy one. Key hurdles to coverage are the following:

  • Does the contract include the right language?
  • Has an additional insured endorsement been requested, or does the policy have a blanket additional insured clause?
  • Does the policy’s additional insured language encompass the claim against the additional insured?
  • Does the additional insured coverage line up as desired with the additional insured’s own insurance?

A recent federal court decision maps out this road in detail. In Scottsdale Insurance Company v. United Rentals (North America), Inc., United States District Court for the District of Massachusetts, Civil Action No. 13-12824-DPW (Memorandum and Order, March 30, 2018). In that case, a few words missing from the lease between the businesses cost the additional insured much if not all of its indemnity coverage under the other party’s insurance policy.

United leased a lift to Gomes Services under a contract that required Gomes to maintain liability insurance and, when requested, to supply proof of insurance naming United as an additional insured. In a prior decision in the same case, the court held that this language, while clumsy, was sufficient to require Gomes to add United to its policy as an additional insured. Because Gomes’ policy with Scottsdale included a blanket additional insured endorsement, amending the policy to include as an additional insured any person Gomes was required to add as an additional insured under a written contract United was an additional insured on the Scottsdale policy. The prior decision concluded that, because United’s own policy did not require its insurer to defend United, Scottsdale had a duty to defend United against a suit by a person who was struck and injured by the lift.

Three years later, after the underlying tort case settled, Scottsdale and United returned to the court for a ruling on the duty to indemnify. Two issues were in dispute:

  1. Does the Additional Insured Coverage Apply Only to Vicarious Liability?

First, the court addressed United’s and Scottsdale’s conflicting interpretations of the limiting language in Scottsdale’s additional insured endorsement. The endorsement stated that the additional insured coverage applied “only with respect to liability for bodily injury . . . caused, in whole or in part, by . . . [Gomes’] acts or omissions.” Was it United’s liability that must be caused by Gomes’ acts, as Scottsdale argued, meaning that the additional insured was only covered for vicarious liability? Or was it the claimant’s injury that must be caused by Gomes’ acts, as United asserted, meaning that United’s liability for its own negligence was covered, as long as Gomes’ conduct was a proximate cause of the injuries (a fact which no one disputed). The court ruled in favor of United, observing that if Scottsdale had intended to limit the additional insured coverage to vicarious liability, it could have said so directly. The court also noted that the limiting clause’s “in whole or in part” language was inconsistent with the interpretation that the clause applied only to vicarious liability, which is “an all or nothing proposition.”

  1. Is the Additional Insured Coverage Primary?

This brings us to the last bump in the road: how did the Scottsdale policy’s indemnification obligation interface with United’s own liability coverage? The Scottsdale policy stated that the additional insured coverage was excess over any other valid and collectible insurance, unless a written agreement required it to be primary. United’s own policy stated that it was excess over any other primary insurance for which United has been added as an additional insured, but was otherwise primary.

United’s contract with Gomes required United to be named as an additional insured on Gomes’ policy, but did not require Gomes’ policy to be primary. Therefore, under the policy’s respective “other insurance” provisions, the Scottsdale policy was excess, and United’s own insurance was primary. The court also rejected United’s argument that, because United’s own policy was a fronting policy (with $2 million limits and a $2 million deductible), it did not constitute “other valid and collectible insurance.” The result: United was on the hook for the first $2 million in indemnity.

So, as it turns out, United was tripped up by the very first step in the process. If its contract with Gomes had specified that Gomes was required to name it as an additional insured on a primary basis, then United’s fronting policy would have been excess, and Gomes’ insurer would have provided primary coverage for United.

A Few Observations:

  • The contract providing for additional insured coverage should specify that the additional insured coverage must be primary. Specifying that the additional insured coverage must be “primary and non-contributory” may help in some circumstances to avoid a determination that the insured’s own policy shares the risk with the additional insured coverage.
  • Most of the time, contracting parties rely on certificates of insurance to confirm additional insured status. As this case illustrates, you can’t know what protection you really have without reading the policy. This doesn’t happen very often before there is a claim. At a minimum, a review of the additional insured endorsement at the time of contracting will be well worth the effort.
  • The 2013 revisions to the ISO (Insurance Services Office) additional insured endorsements create another set of issues not discussed in this case (the policies at issue preceded the revisions). These endorsements provide that the scope of the additional insured coverage is no broader than what is required by the insured’s contract with the additional insured. Also, these endorsements state that the limit of the additional insured coverage is the policy limit or the amount of insurance required in the contract, whichever is less. It therefore is critical that the contract clearly describes the scope of the desired coverage. The additional insured will also want to determine what limits of liability the contracting party carries, so as not to contract for a lower limit when more coverage otherwise would be available.

In Washington, Insurers Can’t “Unring The Bell” After Wrongful Denial Of Coverage

Kevin Mapes | The Policyholder Report | April 23, 2018

For the second time in two months, a federal court in Washington state has rejected an insurer’s attempt to avoid the consequences of its wrongful failure to defend its insured by effectively changing its mind and later—in this case much later—offering a defense. In Rushforth Construction Co. v. Wesco Ins. Co., plaintiff Rushforth was a general contractor. Following good contracting practices, Rushforth made sure that it was included as an “additional insured” under liability policies issued to its subcontractors. When Rushforth was sued for construction defects, it tendered the claim to Wesco, the insurer for one of those subcontractors.

Wesco’s claims handling was less than stellar. Rushforth tendered the matter to Wesco on July 1, 2016. To its credit, Wesco opened a file and began investigating the claim, even going so far as to draft a reservation of rights letter sometime around September 1, 2016. From there, however, the claims-handling wheels came off. For reasons unexplained, the reservation-of-rights letter was never finalized or sent, despite repeated inquiries from Rushforth. Finally, more than a year after the claim was tendered, Rushforth filed suit against Wesco. Only then did Wesco send its letter, agreeing to defend under a reservation of rights. Rushforth rejected that offer.

Rushforth moved for partial summary judgment on three issues: 1) whether Wesco breached its duty to defend; 2) whether Wesco acted in bad faith; and 3) whether Wesco’s belated offer to defend cured its breach. According to Judge Coughenour of the Western District, the answers are 1) yes; 2) yes; and 3) no. The Court specifically rejected Wesco’s argument that it never actually denied a defense, and thus could not have breached. “An insurer may breach its duty to defend by failing to respond to an insured’s tender in a reasonably timely manner.” And because Wesco offered no justification for its delay, the Court went on to conclude that Wesco had acted in bad faith as a matter of law.

Finally, the Court rejected the insurer’s argument that its belated offer of a defense cured its prior breach. Because Wesco’s breach was material, the insured was released from its contractual duty to cooperate, and Wesco had no right to provide a belated defense. The insured “had the option of allowing Wesco to assume a defense, but it was not required to do so. Wesco cannot cure its breach by forcing [Rushforth] to accept a belated defense.”

For insurers handling claims in Washington, the case presents another reminder that Washington law favors the policyholder. Fail to defend at your own peril, and don’t expect the opportunity to “fix” a wrongful denial if the insured fights back. For policyholders, the lesson is similar: the law is frequently on your side in Washington, and insureds should not hesitate to aggressively protect their interests in the face of an insurer’s denial of coverage (or, as here, an insurer’s failure to act).