Eveready Insurance v. Illinois National Insurance

Appellate Division of the Supreme Court of New York

Eveready Insurance v. Illinois National Insurance

62 A.D.3d 404, 879 N.Y.S.2d 72

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 2009

StatusPublished

This text of 62 A.D.3d 404 (Eveready Insurance v. Illinois National Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eveready Insurance v. Illinois National Insurance, 62 A.D.3d 404, 879 N.Y.S.2d 72 (N.Y. Ct. App. 2009).

Pincite

Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about September 26, 2007, which, in a declaratory judgment action between insurers involving the parties’ respective obligations to contribute to the settlement of an underlying action, upon the parties’ respective motions for summary judgment, declared, inter alia, that plaintiff is a primary insurer and defendant-respondent an excess insurer, and that defendant is not required to contribute in the proportion that the limits of its policy bears to the total of the limits of both its policy and plaintiffs policy, unanimously affirmed, without costs.

The clear and unambiguous “other insurance” clause of defendant’s policy limits its policy to “excess” coverage where a covered accident involves a vehicle not owned by its insured, Domino’s Pizza. As it was undisputed that the vehicle involved in the accident belonged to plaintiffs insured, a deliveryman for Domino’s Pizza who was making a pizza delivery, defendant is an excess insurer required to contribute to the settlement only after the exhaustion of plaintiffs policy (Federal Ins. Co. v Ryder Truck Rental, 189 AD2d 582 [1993], affd 82 NY2d 909 [1994]). There is no merit to plaintiffs argument that this “excess” provision of the other insurance clause is contradicted and negated by the “proportionate payment” provision of the same clause. The latter, by its terms, only applies to coverage that is “on the same basis,” i.e., where the policy is primary and there are other primary policies, the policy will pay pro rata with the other primary policies, and where the policy is excess and there are other excess policies, the policy will pay pro rata with the other excess policies (General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659, 669 [1958]). Here, plaintiffs policy is primary and defendant’s policy is excess. Concur—Gonzalez, P.J., Buckley, Catterson, McGuire and Renwick, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about September 26, 2007, which, in a declaratory judgment action between insurers involving the parties’ respective obligations to contribute to the settlement of an underlying action, upon the parties’ respective motions for summary judgment, declared, inter alia, that plaintiff is a primary insurer and defendant-respondent an excess insurer, and that defendant is not required to contribute in the proportion that the limits of its policy bears to the total of the limits of both its policy and plaintiffs policy, unanimously affirmed, without costs.

The clear and unambiguous “other insurance” clause of defendant’s policy limits its policy to “excess” coverage where a covered accident involves a vehicle not owned by its insured, Domino’s Pizza. As it was undisputed that the vehicle involved in the accident belonged to plaintiffs insured, a deliveryman for Domino’s Pizza who was making a pizza delivery, defendant is an excess insurer required to contribute to the settlement only after the exhaustion of plaintiffs policy (Federal Ins. Co. v Ryder Truck Rental, 189 AD2d 582 [1993], affd 82 NY2d 909 [1994]). There is no merit to plaintiffs argument that this “excess” provision of the other insurance clause is contradicted and negated by the “proportionate payment” provision of the same clause. The latter, by its terms, only applies to coverage that is “on the same basis,” i.e., where the policy is primary and there are other primary policies, the policy will pay pro rata with the other primary policies, and where the policy is excess and there are other excess policies, the policy will pay pro rata with the other excess policies (General Acc. Fire & Life Assur. Corp. v Piazza, 4 NY2d 659, 669 [1958]). Here, plaintiffs policy is primary and defendant’s policy is excess. Concur—Gonzalez, P.J., Buckley, Catterson, McGuire and Renwick, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

62 A.D.3d 404, 879 N.Y.S.2d 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eveready-insurance-v-illinois-national-insurance-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack