After a lawsuit was brought against Naylor based on problems with the construction project, Naylor sought coverage as an additional insured under Gemini's policy, and the insurer denied coverage. Gemini filed a motion for summary judgment based on the grounds that Naylor failed to present evidence of a written contract or agreement between Naylor and Coast that would satisfy the additional insured endorsement.

 The District Court noted that when a policy endorsement expands coverage, as in this case, it is the plaintiff's burden to prove that he falls within the scope of coverage. Gemini contended that there was no evidence of a contract or agreement. Naylor argued that a letter and a facsimile form the required agreement. Naylor said that the developer of the project told him what he would need from the subcontractors and that he sent those requirements in a letter to Coast. In the body of the letter, Naylor directs the subcontractor to "please supply current contact information, a completed and signed W-9, a copy of a general contractor's license, and a copy of the general liability policy naming Naylor as additional insured". Naylor further contended that Coast sent him a fax of a certificate of insurance identifying Naylor as a certificate holder and noting that the certificate holder is named as an additional insured under the liability policy.

 The court said that the additional insured endorsement expressly requires a written contract or agreement and the court then centered its attention on the word "agreement". An agreement has a wider meaning, noted the court, and contains no implication that legal consequences are or are not produced. An agreement is a manifestation of mutual assent by two or more persons to one another. In the court's view, this meant that there was a genuine issue of fact as to whether Naylor and Coast exchanged the letter and fax in a manner evincing the parties' mutual assent to add Naylor as an additional insured, thereby satisfying the written agreement requirement.

 The insurer argued that neither the letter nor the fax were part of a contract or written agreement. Gemini specifically claimed that a certificate of insurance does not constitute a written agreement as a matter of law. The court stated that were it to view the certificate in a vacuum, it would agree with Gemini. However, the court pointed out, Naylor presented evidence that he requested from Coast a copy of the general liability policy naming Naylor as an additional insured and that he subsequently received both the certificate and the endorsement. Thus, Naylor was not asserting that the certificate overrides the policy but that it evinces the intent of the parties to agree on the additional insured status.

 The court concluded that there was a factual dispute as to Naylor's status as an additional insured and so, Gemini's motion was denied.

 Editor's Note: This decision of the U.S. District Court, S.D. California, is another example of how courts see the written agreement requirement in an additional insured endorsement. Neither party here disputed the core requirement that a party seeking additional insured status must enter into a written contract or agreement with the insured for coverage. The sole dispute was whether Coast and Naylor satisfied that requirement, and the court found the evidence of an agreement (consisting of a letter and a fax) sufficient to deny the insurer's motion for summary judgment.