Two established insurers are facing off in federal court over a familiar coverage question: which policy responds first. The Travelers Indemnity Company filed suit against Erie Insurance Company on Jan. 29, 2026, in the US District Court for the Western District of New York. The dispute stems from a construction site injury in Buffalo and centers on which insurer has the primary duty to defend.
Background of the Underlying Claim
The underlying claim arises from an incident that allegedly occurred on or about April 1, 2021, at a housing development project located at 19 Doat Street in Buffalo.
According to the court filing, Thomas G. Sellitto was injured while attempting to maneuver a bin filled with reclaimed hardwood. The filing states that he sustained multi-level lumbar spine disc bulges and herniations with radiculopathy.
The project involved The Crossroads at Genesee Housing Development Fund Co. Inc. as the owner and The Pike Company, Inc. as the contractor. Pike retained Fairway Floor Covering Inc. as a subcontractor to perform flooring work, including demolition of the existing hardwood floor and installation of a new floor.
Contractual Insurance Requirements
Under its contract with Pike, Fairway was required to maintain commercial general liability coverage naming both Pike and Crossroads as additional insureds. The contract specified that this coverage would apply on a primary and non-contributory basis.
Erie issued the commercial general liability policy to Fairway. The policy included an endorsement listing Pike and others “as per written contract” in connection with the Buffalo project.
The endorsement provides coverage for bodily injury “caused, in whole or in part, by” Fairway’s acts or omissions in the performance of ongoing operations for the additional insureds. In addition, the policy states that coverage “is primary to and will not seek contribution from any other insurance available to an additional insured,” provided certain conditions are satisfied.
Tender and Denial
Travelers, which insures Pike directly, tendered the defense of Pike and Crossroads to Erie in February 2024.
Erie acknowledged receipt of the tender. However, two months later, Erie denied coverage. The company stated that there was insufficient evidence to establish that the alleged injury arose out of the acts or omissions of its named insured, Fairway.
Since the denial, Travelers has funded the defense of Pike and Crossroads in the underlying action.
Federal Court Action
In its lawsuit, Travelers seeks a declaration that Erie’s policy should have responded on a primary basis. Travelers also seeks reimbursement for all defense costs it has paid and continues to pay on behalf of Pike and Crossroads.
The court has not issued any determination on the merits of the coverage dispute. The case remains in its early stages, and the court has yet to address the substantive questions raised in the complaint.
The dispute places focus on the interpretation of additional insured endorsements, the application of “primary and non-contributory” language, and the threshold showing required to trigger coverage under provisions tied to a subcontractor’s acts or omissions.
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