Ohio Security says a rival insurer never answered two defense tenders in a Brooklyn injury suit - and wants a judge to step in.
Ohio Security Insurance Company sued Accident Fund Insurance Company of America in the US District Court for the Eastern District of New York on July 15, 2026, saying it got stuck paying for a construction-accident defense that, according to the complaint, should have been Accident Fund's job.
The dispute, as the filing lays it out, works like this. Ohio Security is defending three companies - Legacy Contractors NY, LLC, and two 326 Rockaway entities, together the "Additional Insureds" - in a state-court injury suit. That case was brought by a construction worker who the complaint says was hurt on March 14, 2023, at a Rockaway Avenue project in Brooklyn while employed by a subcontractor, KSF NY Services, LLC.
The coverage runs through the paperwork. A Trade Contract signed on or about January 23, 2023 required KSF's insurance to be "PRIMARY AND NON-CONTRIBUTORY" and to name the contractor and owner as additional insureds, the complaint says. KSF's carrier was Accident Fund, under a general liability policy running April 26, 2022 to April 26, 2023, with limits of $2 million per occurrence and $4 million aggregate.
Ohio Security says its insureds are covered under that policy. As quoted in the filing, the policy gave the insurer "the right and duty to defend the insured against any 'suit' seeking those damages even if the allegations of the 'suit' are groundless, false or fraudulent." A separate endorsement, the complaint says, provided that where a claim arose from the named insured's negligence, "this insurance shall be primary and any other insurance maintained by the Entity above shall be excess and non-contributory."
So Ohio Security tendered the defense to Accident Fund - twice, on September 20 and October 16, 2023, according to the complaint. Its account: Accident Fund "failed or refused to respond," and the tender was "disregarded."
For claims teams, that is the whole lesson. Primary and non-contributory wording and a strong additional-insured endorsement only work if the other carrier answers the tender. When it does not, the complaint's theory goes, the bill does not disappear - it turns into a coverage lawsuit like this one, with the plaintiff carrier leaning on its dated, documented tenders to try to get its money back. Ohio Security is asking the court to declare that Accident Fund owes a primary, non-contributory defense and indemnity without a reservation of rights, and to order it to reimburse OSIC's costs with interest.
These are allegations. They have not been tested in court, and no court has ruled on the complaint.
