dissenting.
I do not agree that the record shows that plaintiff’s claim is not covered by the policy involved. The policy in question is a builder’s risk policy obtained for the manifest and stated purpose of protecting the owner and its builders against all risks to the properties affected by the owner’s construction project. That plaintiff, an admitted subcontractor on the construction, is not named as an additional insured in the policy is immaterial. Naming the general contractor as an additional insured included by implication the subcontractors that the general contractor employed to do its work. That defendant understood this is shown by inter alia the testimony of their broker that the cost of the policy was the same whether a subcontractor was listed or not; the testimony of their adjuster, Snyder, that “we’re saying that Metric’s interests are covered”; by defendant paying the owner for a loss of plaintiff’s that had the same standing under the policy as the one still disputed; and by defendant stating in its answer that it “was agreeable to paying” what it deemed the loss was upon “submission of a proof in proper form.” The statement was a judicial admission that plaintiff’s claim was covered by the policy, and that fact having been admitted, plaintiff did not have to prove it, though it did.
Nor do I agree that plaintiff’s complaint does not adequately allege that it is a third-party beneficiary under the policy. Having alleged that the builder’s risk policy was obtained for the protection of the owner, “the general contractor and subcontractors,” and that it was a subcontractor on the construction project involved, any further allegation that it was a third-party beneficiary of the policy would have been a pointless redundancy. In my view the pleadings and the stipulated facts established plaintiff’s claim as a matter of law and I would affirm the judgment.