A fresh lawsuit in Manhattan could set the tone for how insurance companies handle professional liability exclusions when things go wrong on a job site.
On Aug. 27, Selective Insurance Company of America filed a complaint in the Southern District of New York, asking the court to decide who should pay for defending Desman Inc., a design firm, in a wrongful death case tied to a parking garage at Rowan University in New Jersey. The case, Selective Insurance Company of America v. Endurance American Insurance Company and Desman Inc., is a dispute between two insurers over who is responsible for the defense costs in ongoing litigation.
Here’s what’s at stake. On Nov. 1, 2021, Maximilian Gray-Barquero died after jumping from the upper level of the Redmond Parking Garage at Rowan University. According to the complaint, the estate of Gray-Barquero alleges that Desman, along with other parties, failed to properly design, construct, install, maintain, own, operate, control, inspect, supervise, or otherwise discharge their responsibilities with respect to the parking facility. The complaint further states that Desman’s only role regarding the garage involved providing a design drawing for anchor bolts used to affix the fencing that was allegedly inadequate.
Desman turned to Selective, which had issued it a commercial general liability policy covering the period of the incident. Selective’s policy includes an exclusion for professional liability, stating it does not apply to bodily injury, property damage, or personal and advertising injury arising out of the rendering of or failure to render any professional services by the insured or any engineer, architect, or surveyor performing work on its behalf. Professional services are defined to include preparing or approving drawings and specifications, and supervisory, inspection, architectural, or engineering activities. The umbrella liability coverage under the Selective policy contains a similar exclusion for professional services.
In November 2023, Desman requested that Selective defend and indemnify it in the underlying action. Selective agreed to provide a defense under a reservation of rights, due to the broad nature of the allegations, and advised Desman to notify its professional liability insurer.
Endurance American Insurance Company had issued Desman a design professionals liability policy effective during a later period. According to the complaint, this policy covers losses resulting from claims first made during the policy period for any wrongful act committed in the performance of or failure to perform design professional services.
Desman requested Endurance to defend and indemnify it in the underlying action, and Endurance acknowledged the request and assigned a claim number. Selective, through its coverage counsel, sent a letter in December 2024 to Sompo International, Endurance’s parent company, demanding that Endurance take over Desman’s defense. Endurance, through its coverage counsel, responded in March 2025, rejecting the tender and claiming that certain claims are potentially covered under the Selective policy, and that Selective’s coverage should come first.
Selective’s complaint seeks a judicial declaration that it has no duty to defend or indemnify Desman in the underlying action under its policy, that Endurance has a duty to defend Desman under the Endurance policy, and that Selective is entitled to recover the costs it incurred defending Desman since the date Desman’s defense was tendered to Endurance.
For insurance professionals, this case is a clear example of how professional liability exclusions can play out when multiple policies and carriers are involved. The outcome may influence how insurers write and interpret these exclusions and how they handle the allocation of defense costs in claims involving design and engineering work.
As the case moves forward, the industry will be watching closely. The decision could shape how similar disputes are resolved in the future, especially when it comes to drawing the line between general liability and professional liability coverage. For now, both sides have staked their positions, and the court’s decision will be closely followed by those in the insurance business.
