Harleysville Insurance Co. is not obligated to defend and indemnify the University of Rochester Medical Center in a lawsuit filed by an injured construction worker because the university is not an additional insured under the policy with the insurer’s policyholder, said a federal appeals court Wednesday in reversing a lower court ruling.

Jumall Little, an employee of The Kimmell Co. Inc., based in Brockport, New York, was repairing a heating ventilation and air conditioning system on the roof at the University of Rochester’s Strong Memorial Hospital in December 2008 when he fell through a skylight and was injured, according to court papers in Cincinnati Insurance Co. v. Harleysville Insurance Co. et al.

Mr. Little filed suit against the university, Rochester, New York-based LeChase Construction Corp. and LeChase Construction Services L.L.C., and Rochester-based subcontractor J.T. Mauro Co. Inc.

Mauro had a commercial general liability policy with Fairfield, Ohio-based Cincinnati Insurance Co. Cincinnati had demanded that Kimmel’s insurer, Harleysville, Pennsylvania-based Harleysville, provide a defense and indemnification to each of the defendants.

The issue in the litigation was whether the university and LeChase were additional insureds under the Harleysville policy. The U.S. District Court in Rochester held the university was an additional insured, but not LeChase.

On appeal, a three-judge appeals panel of the 2nd U.S. Circuit Court of Appeals in New York partially reversed the lower court and held the university was also not an additional insured under the Harleysville policy.

At issue is the “privity” endorsement in the Harleysville policy. This refers to the relationship between the parties to a contract which allows them to sue one another but prevents a third party from doing so.

The District Court ruling that the policy’s privity endorsement conferred additional insured status on the University of Rochester was contrary to “settled interpretation,” said the ruling.

“Kimmel did not enter into a contract with (the university) and so there is no contractual privity between Kimmel” and the university, said the ruling, in reversing the lower court ruling on this issue.