Erie denied the tender - now Travelers wants answers and its defense costs back
Two established insurers are now squaring off in federal court over a question as old as the industry itself: who pays first?
The Travelers Indemnity Company filed suit against Erie Insurance Company on January 29, 2026, in the US District Court for the Western District of New York. At the heart of the dispute is a construction site injury in Buffalo and a disagreement over which insurer should be covering the defense.
The underlying claim traces back to on or about April 1, 2021, when a worker named Thomas G. Sellitto was allegedly injured at a housing development project at 19 Doat Street in Buffalo. According to the court filing, Sellitto was attempting to maneuver a bin filled with reclaimed hardwood when he sustained multi-level lumbar spine disc bulges/herniations with radiculopathy.
The project involved The Crossroads at Genesee Housing Development Fund Co. Inc. as owner and The Pike Company, Inc. as contractor. Pike had hired Fairway Floor Covering Inc. to handle flooring work, including demolition of the existing hardwood floor and installation of a new floor.
Here is where it gets interesting for insurance professionals.
Fairway, as the subcontractor, was required under its contract with Pike to carry commercial general liability insurance naming both Pike and Crossroads as additional insureds—on a primary and non-contributory basis. Erie issued that policy to Fairway, and it included an endorsement listing Pike and others "as per written contract" for the Buffalo project.
The endorsement specifies that coverage applies to bodily injury "caused, in whole or in part, by" Fairway's acts or omissions in the performance of ongoing operations for the additional insureds. The policy also contains language stating that coverage "is primary to and will not seek contribution from any other insurance available to an additional insured," provided certain conditions are met.
Travelers, which insures Pike directly, tendered the defense of Pike and Crossroads to Erie in February 2024. Erie acknowledged the request but denied coverage two months later, stating there was not enough evidence that the alleged loss arose out of the acts or omissions of its insured.
Travelers has since been covering the defense costs and is now asking the court to declare that Erie's policy should have responded first. The insurer is also seeking reimbursement for all sums it has paid and continues to pay in defending Pike and Crossroads.
No determination has been made on the merits. The case remains in its early stages, with the court yet to weigh in on the coverage questions at play.
For insurers and risk managers, this case touches on familiar territory—the fine print of additional insured endorsements, the meaning of "primary and non-contributory," and the recurring question of whose policy responds when a subcontractor's work allegedly leads to injury.