Scotts Co. v. Pacific Employers Insurance

61 A.D.3d 464, 875 N.Y.S.2d 891

Opinion

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 27, 2008, which, to the extent appealed from as limited by the briefs, denied third-party plaintiffs motion to amend its third-party complaint to seek relief enjoining its coinsurers from seeking contribution in this matter as to any claims in any proceeding in any jurisdiction, unanimously affirmed, with costs.

The court properly denied appellant’s motion to amend the third-party complaint since the proposed amendment did not state a viable claim for relief. The amendment sought to enjoin appellant’s coinsurers from proceeding against appellant for contribution based upon appellant’s settlement agreement with the insured and upon General Obligations Law § 15-108. The court correctly found that the settlement agreement’s express contemplation of contribution claims by the coinsurers was a waiver of section 15-108’s protections (see Mitchell v New York Hosp., 61 NY2d 208, 213 [1984]). Moreover, section 15-108 applies only to joint tortfeasors, not to coinsurers (HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004]). Concur—Gonzalez, EJ., Tom, Sweeny, Catterson and Renwick, JJ. [See 18 Misc 3d 1139(A), 2008 NY Slip Op 50369(U).]