Cincinnati Insurance has hauled a fellow carrier into federal court, claiming it went silent on multiple defense tenders tied to a worker's death.
In a filing dated February 11, 2026, The Cincinnati Insurance Company brought a declaratory judgment action against Southwest Marine and General Insurance Company in the US District Court for the Eastern District of New York. Cincinnati is asking the court to declare that Southwest, and not Cincinnati, holds the primary obligation to defend and indemnify two construction-related entities in an underlying wrongful death lawsuit. No determination has been made on the merits.
The dispute traces back to April 14, 2023, when Noe Diaz Gamez, an employee of Elite Roofing Services, was allegedly killed while performing roofing work at an elevation. His estate later sued Allied Maker LLC and Charlie & Sidney, LLC, among others, in Nassau County Supreme Court, citing negligence and violations of New York Labor Law and seeking damages in excess of two million dollars.
Here is where the insurance story gets interesting.
Preferred Exterior Industries, Inc., identified as the subcontractor on the project, had entered into a contract with AMW Development Corp. just days before the incident. That contract required Preferred Exterior to carry insurance that would "protect the general contractor, owner, and tenant…for claims arising out of or resulting from subcontractor's work." It also required that coverage be "PRIMARY AND NON-CONTRIBUTORY." Charlie & Sidney, LLC was the owner. Allied Maker was the tenant. Both were named as additional insureds on Southwest's policy issued to Preferred Exterior.
Cincinnati, which carried its own policy for Allied Maker with matching limits of one million dollars per occurrence and two million dollars aggregate, stepped up. It accepted the tender and hired lawyers to defend both Allied Maker and Charlie & Sidney.
But Cincinnati says Southwest never did.
According to the filing, Allied Maker first notified Preferred Exterior of the claim on September 1, 2023. Southwest responded days later but did not accept the tender. A second notice went directly to Southwest in December 2023. No response. After the lawsuit was filed, Allied Maker tried again in December 2024. Charlie & Sidney, LLC followed in December 2025. Still nothing, Cincinnati alleges.
Cincinnati is now seeking a court declaration that Southwest owes the primary duty to defend and indemnify both entities, along with reimbursement for all the defense costs Cincinnati has been carrying since the tender.
The case is a sharp reminder of a vulnerability that construction insurance professionals know all too well: the entire subcontractor risk transfer model, built on additional insured endorsements and primary and non-contributory provisions, depends on every carrier in the chain actually showing up when it counts. When one does not, the burden shifts, and disputes like this one follow.
