New York’s First Department Holds That Classification Limitation Endorsement Is Part Of The Coverage Grant, Not An Exclusion, Meaning It’s Not Waivable Under Insurance Law.

In Black Bull Contracting, LLC v. Indian Harbor Insurance Company, 2016 NY Slip Op 00002, New York’s Appellate Division, First Department recently concluded that a classification endorsement barred coverage, holding in the process that the endorsement, read together with the declarations page and the coverage form, states what is covered and is not an exclusion-even though the endorsement is phrased as a limitation on the coverage afforded.

The significance in Black Bull was that the insurer was deemed not to have waived the classification defense by untimely disclaiming. While not discussed by the Court, the decision is also significant because it indicates for the first time that the burden of proof in establishing the applicability of the classification should be on insureds and not insurers.