Schlam Stone Partners Brad Nash (the editor of the Insurance Blog) and Solomon Klein (editor of the EDNY Blog) will be speaking on June 18, 2018 at the Winning Edge 2018 Executive Business Conference at Montclair State University.

Law and The Entrepreneur: Legal Challenges and Opportunities on the Path to Success

Solomon N. Klein and Bradley Nash — partners at the law firm Schlam Stone & Dolan LLP — will lead a discussion on how business leaders can navigate the legal landscape. Today’s entrepreneur faces a number of legal challenges — from private lawsuits to regulatory barriers to innovation. Topics will include: Strategies to reduce litigation risk when creating your business; Dealing with industry-specific regulations; Arbitration; Insurance coverage; and management of litigation and regulatory risk. Finally, the panel will share tips and ideas on being a savvy consumer of legal services.

On May 25, 2018, Judge Furman of the SDNY issued a decision in American Ins. Co. v. Kartheiser, Case No. 17-CV-5545 (JMF), denying a motion to dismiss a subrogation action for failure to join the insured as a party.

In American Ins. Co., an insurer brought a subrogation action in federal court, seeking to recover amounts it paid to the insured for property damage caused by the defendant.  Joining the insured — which was was separately suing the defendant in state court for amounts not covered by the insurer — would have defeated diversity jurisdiction in the insurer’s federal subrogation action.  The Court held that insured need not be joined as a party, since it was not an indispensable party for purposes of Fed R. Civ. P. 19:

Under long-settled Second Circuit law, Watson Photography is “clearly” not an indispensable party and Defendants’ motion must be denied. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of N.Y. (“Arkwright-Boston”), 762 F.2d 205, 209 (2d Cir. 1985). In Arkwright-Boston, as here, an insurer sued in federal court to recover for payments made to its insured, while the insured sued the same defendants in state court to recover its deductible. On appeal, the Second Circuit affirmed the district court’s denial of the defendants’ motion to dismiss pursuant to Rule 12(b)(7). “In a subrogation case,” the Court explained, “the insurer and the insured are ‘necessary’ parties, but clearly they are not indispensable parties.” Id. at 209 (citing United States v. Aetna Cas. & Sur. Co., 388 U.S. 366 (1949)). The insured’s “state action,” the Court continued, “seeks only its . . . deductible, while [the insurer’s] federal subrogration suit is for the [money] it paid to [the insured]. These two claims are separate and distinct, and . . . [t]he fact that the defendants may be required to defend more than one action arising from the same tort is not grounds for finding the insured an indispensable party to its insurer’s partial subrogation action.” Id.; see also St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 81 (2d Cir. 2005) (“[I]f joinder of the absent insured or insurer would deprive the court of jurisdiction over the subject matter of the action, the court may properly proceed in accordance with Rule 19 to adjudicate the rights of the suing plaintiff alone; the consequence is that the defendant may have to defend two or more actions on the same tort.” (internal quotation marks omitted)).

Arkwright-Boston compels denial of Defendants’ motion. As in Arkwright-Boston, AIC seeks only to recover the money it paid to Watson Photography. (See Am. Compl. ¶ 3). By contrast, Watson Photography seeks to recover in its state-court action only the “damages [that] are not covered under [Watson’s] insurance policy.” (Docket No. 18, Ex. 7, at ¶ 11). Accordingly, there is no danger of double recovery. And in the absence of such a danger, the mere risk that a finding in one action would be given collateral estoppel effect in the other does not alone render Watson Photography an indispensable party. See, e.g., Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of N.Y., No. 84-CV-5724 (CSH), 1984 WL 1263, at *2 (S.D.N.Y. Nov. 21, 1984) (“Although defendants may be collaterally estopped from denying liability in a subsequent state court trial if found liable in negligence in the trial of this action, there is no possibility of double recovery against defendants.”), aff’d, 762 F.2d 205; see also, e.g., Allstate Ins. Co. v. Choi, No. 06-CV-3870 (CPS), 2007 WL 29384, at *3 (E.D.N.Y. Jan. 4, 2007) (“Resolution of the action between [the insurance company] and the defendants for the amounts paid by [the insurance company] on the policy will not impede the [the insured’s] ability to pursue their state court remedies.”).

On May 11, 2018, Justice Lebovits of New York County Supreme Court issued a decision in Touro College v. Arch Specialty Ins. Co., Index No. 652642/2016, holding that a property owner was entitled to defense coverage for a personal injury action as an additional insured under a general contractor’s CGL policy.  The Court ruled that the issue of indemnity coverage, however, would have to await the determination of the contractor’s liability in the underlying injury action.

This case involves a policy provision that was the subject of a recent Court of Appeals decision covered on this blog – the blanket “additional insureds” endorsement to a contractor’s liability policy.  In connection with construction projects, project owners typically require contractors to obtain liability coverage for “upstream” parties (e.g., construction managers or property owners).  The contractor accomplishes this by purchasing a blanket additional insured endorsement covering any party the insured is contractually obligated to name as an additional insured.  Thus, determining who qualifies as an additional insured requires examining both the language of the endorsement and the underlying contracts.

In Touro College, the college sought coverage as an additional insured under the CGL policy of its general contractor (All Pro) for a personal injury lawsuit filed by an employee of a subcontractor for injuries suffered when a piece of sheet rock fell on him at the construction site.

All Pro’s CGL policy (issued by ARCH Specialty Insurance Company) contained the following blanket additional insured endorsement:

SECTION II – WHO IS AN INSURED is amended to include as an additional insured those persons or organizations who are required under a written contract with you to be named as an additional insured, but only with respect to liability for ‘bodily injury’, ‘property damage’, or ‘personal and advertising injury’ caused, in whole or in part, by your acts or omissions or the acts or omissions of your subcontractors:

In the performance of your ongoing operations or ‘your work’, including ‘your work’ that has been completed; or 

In connection with your premises owned by or rented to you.

(Emphasis added).

Thus, to qualify for additional insured coverage under All Pro’s CGL policy, Touro had to establish (1) that it was “required under a written contract with [All Pro] to be named as an additional insured” in the policy; and (2) that the claim involved “‘bodily injury . . . caused, in whole or in part, by [All Pro’s] acts or omissions or the acts or omissions of [its] subcontractors.”

With regard to the first element, Touro’s contract with All Pro required All Pro to name “Touro College” as an additional insured under “[All Pro]’s insurance policies, such insurance to include:  (i) all risk builder’s insurance . . . and (ii) hazard (including fire) insurance.”  ARCH declined to provide defense or indemnity coverage to Touro for the personal injury claim, asserting that All Pro was not contractually required to name Touro as an additional insured under the CGL Policy, but only the all risk builder’s insurance and hazard insurance policies specially referenced in the contract.  Justice Lebovits rejected this argument, explaining:

The plain language of the Construction Contract’s policy procurement provision requires All Pro to name Touro as an additional insured on its policies, which is all that the plain language of the Additional Insured Endorsement calls for. That the policy procurement provision goes on to specify the types of policies that All Pro must provide does nothing to restrict the preceding independent clause, calling for additional insured coverage under All Pro’s policies generally. As English Oxford Living Dictionaries explains, while the word “include” may be used to imply that the items listed comprise the whole, “it is also used in a non-restrictive way, implying that there may be other things not specifically mentioned that are part of the same category.” English Oxford Living Dictionaries (2018) (Note: online version). Here, the appearance of “to include,” after the language requiring All Pro to list Touro as an additional insured on its insurance policies, conveys such non-restrictive usage of the phrase. Therefore, contrary to ARCH’s reading, the Construction Contract requires that Touro be named as an additional insured on All Pro’s policies, including the Policy. 

As for the second element, Justice Lebovits held that it was “premature to decide whether ARCH has a duty to indemnify Touro as an additional insured,” as “there has not been a determination of All Pro’s liability” in the underlying action.  However, Justice Lebovits held that the allegations in the personal injury action were sufficient to trigger ARCH’s duty to defend Touro as an additional insured, explaining:

While it may be that All Pro’s acts or omissions were not the proximate cause of Padilla’s injury, the allegations in the Underlying Action “suggest . . . a reasonable possibility of coverage”, which triggers the duty to defend. Therefore, ARCH has a duty to defend Touro in the Underlying Action and it is in breach of that obligation.

(Citations omitted).

As a remedy for ARCH’s breach of the duty to defend, the Court ordered ARCH to pay the “costs and expenses incurred in defending the Underlying Action.”  What about the fees Touro incurred suing ARCH to enforce its rights as an additional insured under the policy?  Those fees were not recoverable.  Under a quirk in New York law, fee-shifting is available in a coverage litigation only when the insurance company commences a declaratory judgment action, thus, “cast[ing]” the insured “in a defensive posture.”  Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21 (1979).  Insureds generally “may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy.”  New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 324 (1995).

In a decision covered on the Commercial Division Blog, Justice Kornreich of the New York County Commercial Division questioned the wisdom of this double standard and took the unusual step of encouraging the plaintiff to appeal her decision denying fee-shifting, so that the Court of Appeals might revisit the issue.  For now, however, it remains the law.

On May 11, 2018, the Second Circuit issued a decision in Hough v. USAA Casualty Ins. Co., Case No. 17-1073, holding that a collision between a driver and a “flagman” at a construction site was not a covered “occurrence” under the driver’s automobile liability and umbrella policies because the injury was “intentionally caused.”  The policies contained the standard definition of a covered “occurrence” as an “accident,” which under the case law connotes “unintended damage.”  Olin Corp. v. Insurance Co. of North America, 221 F.3d 307, 317 (2d Cir. 2000) (citing McGroarty v. Great American Ins. Co., 26 N.Y.2d 358 (1975)).  The Second Circuit affirmed the finding of the bankruptcy court, and the district judge that the underlying incident did not qualify as an “accident” under this standard.

The Court summarized the facts as follows:

Margulies [the insured] was driving a car north on Sixth Avenue, on his way to a meeting with former Governor Mario Cuomo, and running late.  Hough was managing traffic.  Margulies was stopped by Hough, his car first in the line.  Hough continued to hold traffic, even though it seemed no vehicles were entering or exiting the construction site.  Margulies became increasingly impatient as he watched the traffic light at 23rd Street pass through two full cycles without seeing any trucks enter or leave the site.  Margulies testified he made eye contact with Hough to communicate his intention to proceed when the light turned green regardless of Hough’s instructions.  When the light changed to green, Margulies lifted his foot off the brakes and his car rolled forward slowly.  Hough was not in Margulies’s lane when the car started moving forward, but stepped back into the lane when the car was about a car length away.  Hough did not move, and the car continued to move forward.  Margulies testified that he expected Hough to move, and thought Hough was staying put “simply to annoy” Margulies.  Margulies continued to allow the car to move forward toward Hough, and did not apply the brakes until after the car hit Hough.  Margulies saw Hough fall and get back up, stated he assumed Hough was unhurt, and continued up Sixth Avenue to his meeting.  Margulies subsequently pled guilty to misdemeanor assault in the third degree. . . .

(Citations omitted).

The Second Circuit held that this incident was not a covered occurrence, explaining: 

Under New York insurance law, an injury is “intentionally caused” and thus not accidental if the “damages . . . flow directly and immediately from an intended act” rather than “a chain of unintended though expected or foreseeable events that occurred after an intentional act.” Brooklyn Law Sch. v. Aetna Cas. & Surety Co., 849 F.2d 788, 789 (2d Cir. 1989) (citation omitted). Hough’s injuries flowed directly and immediately from Margulies’s decision not to apply the car’s brakes until after the car struck Hough. The incident was not an accident within the meaning of New York law, and thus was not an occurrence as defined in the USAA policies.

(Emphasis added).

Covered “accidents” can result from intentional acts, even where the ultimate harm is arguably foreseeable.  For example, in a case covered previously on this blog, the Second Circuit ruled that a car accident caused by a driver to whom the insured had served alcohol when he was visibly intoxicated was a covered accident, even though the insured acted intentionally in serving the alcohol.  What seems to have set Hough apart from other cases involving intentional acts is the “direct and immediate” connection between the insured’s act (i.e., his decision not to apply the brakes until after colliding with the flagman) and the foreseeable injury that followed.

On March 26, 2018, the New York Court of Appeals issued a decision by Judge Wilson (Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117), holding that an Additional Insured-By Written Contract endorsement in a general contractor’s liability policy did not provide coverage for a construction manager that had no written contract with the general contractor — even though the contractor was obligated under a contract with the property owner to name the construction manager as an additional insured.  Judge Stein wrote a dissenting opinion, joined by Judge DiFiore, arguing that the endorsement was ambiguous, and should therefore be interpreted in favor of coverage.

Construction project owners typically require contractors to obtain liability policies naming “upstream” parties (i.e., general contractors, construction managers, or the property owner) as additional insureds.  The contractor accomplishes this by purchasing a blanket “additional insured” endorsement from its liability insurer, providing coverage for any party “the named insured is obligated to name as an additional insured by virtue of a written contract or agreement.”  3 Couch on Insurance § 40:30.  In Gilbane, the general contactor (Samson) was obligated by its contract with the property owner (DASNY) to provide liability coverage for the construction manager (Gilbane JV).  Samson obtained an additional insured endorsement from its liability carrier (Liberty) that included within the definition of “Insured” “any person or organization with whom you have agreed to add as an additional insured by written contract.”  (Emphasis added).

When Gilbane JV submitted a claim for coverage under Samson’s policy, Liberty disclaimed coverage, arguing that the endorsement did not provide coverage for Gilbane JV because it did not have a written contract with the insured.  The trial court found that Gilbane JV qualified as an additional insured, holding that the policy “requires only a written contract to which Samson is a party” – a requirement that was met by Samson’s contract with DASNY.  The First Department (with one Justice dissenting) reversed, holding that the “policy clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured.”

The Court of Appeals affirmed the First Department’s decision, explaining:

Gilbane JV has no written contract with Samson denominating it an additional insured, but argues no such contract is necessary, because that requirement would conflict with the plain meaning of the Liberty endorsement; with “well-settled rules of policy interpretation”; and with the parties’ reasonable expectations. Alternatively, Gilbane JV argues that the Liberty endorsement is, at most, ambiguous on that point, and therefore must be construed against Liberty and in favor of coverage. Gilbane JV is incorrect; the endorsement is facially clear and does not provide for coverage unless Gilbane JV is an organization “with whom” Samson has a written contract.

Here, the endorsement would have the meaning Gilbane JV desires if the word “with” had been omitted. Omitting “with,” the phrase would read: “. . . any person or organization whom you have agreed by written contract to add . . .”, and Gilbane JV’s position would have merit. But Samson and Liberty included that preposition in the contract between them, and we must give it its ordinary meaning. Here, the “with” can only mean that the written contract must be “with” the additional insured. Gilbane JV proposes other wordings that, in its view, would more clearly require the existence of a written contract between Samson and an additional insured, but those formulations are no clearer and, in any event, the endorsement’s meaning is plain and unambiguous.

In a dissenting opinion, Judge Stein (joined by Judge DiFiore) found that the endorsement was ambiguous, and that Gilbane JV’s reading was reasonable, explaining:

The pertinent language, as written, is awkward and unclear, at the very least. Plaintiff Gilbane JV asserts that the phrase “by written contract” modifies “to add,” and argues that it refers to the act of the named insured, Samson, agreeing to add an additional insured. Put differently, Gilbane JV argues that “by written contract” means only that any agreement by Samson to add an additional insured must be memorialized in a writing — not necessarily a writing between Samson and the purported additional insured. Thus, according to Gilbane JV, the contract between DASNY and Samson — under which Samson agreed in writing to procure a general liability insurance policy for the construction project and to name Gilbane JV as an additional insured — was sufficient to confer additional insured status upon Gilbane JV. Defendant, on the other hand, focuses on the phrase “with whom,” arguing that the named insured must agree with the purported additional insured, in a writing between those parties, to add coverage for that entity under the policy.

Fixating on the word “with,” the majority summarily concludes that the policy does not “provide for coverage unless Gilbane JV is an organization with whom’ Samson has a written contract” (majority op, at 3). In so doing, the majority places the phrase “by written contract” directly after “agreed,” effectively rewriting the policy while altogether failing to address Gilbane JV’s proposed construction. Under this reformulation, the pertinent policy language would confer additional insured status upon “any person or organization with whom you have agreed by written contract to add as an additional insured.” Of course, that is not what the policy says. Moreover, even though the majority’s construction is reasonable, the policy language is ambiguous because the construction proffered by Gilbane JV is also reasonable; indeed, Gilbane JV’s interpretation is consistent with the “reasonable expectations of the average insured” that would seek to procure this type of coverage, whereas defendant’s interpretation is not.

In particular, given the unusual syntax of the endorsement — placing the phrase “by written contract” at the end of the sentence, a placement the majority chooses to ignore — it is reasonable for the average insured to expect that the phrase “by written contract” modifies only the immediately preceding infinitive “to add,” such that the phrase prescribes only that the agreement by which the named insured commits to extend coverage to the purported additional insured must be evidenced in a contract reduced to writing. In any event, because each party’s reading of this language is reasonable, the endorsement is ambiguous and thus should be interpreted in favor of coverage.  It follows, then, that the endorsement should not be interpreted as imposing a requirement of privity between Samson and Gilbane JV to effectuate additional insured coverage of Gilbane JV, and the DASNY-Samson contract was sufficient to satisfy the policy provision and entitle Gilbane JV to such coverage.

(Citations omitted).

Insurance coverage is an important consideration in any construction project.  This decision underscores the need to review the policy language carefully to ensure that the necessary parties are covered.

On April 27, 2018, Justice Marcy Friedman of the New York County Commercial Division issued a decision in National Union Fire Ins. Co. of Pittsburgh, PA v. Burling Ins. Co., 2018 NY Slip Op 30741(U), holding that a Total Pollution Exclusion did not excuse an excess liability carrier’s duty to defend personal injury lawsuits brought by clean-up workers at the World Trade Center site, who alleged that they suffered respiratory and other injuries from exposure to toxins dispersed in the area after September 11.

The exclusion at issue in National Union applied to any claim for “‘[b]odily injury’ . . . which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants at any time.”  Under New York law, such exclusions are limited to “‘traditional’ or ‘classic’ environmental pollution.”  Thus, for example, the New York Court of Appeals has ruled that a similarly-worded exclusion did not apply to a claim arising from the inhalation of paint fumes in an office, as this did not constitute “pollution of the environment.”  Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377 (2003).  Justice Friedman noted that Court of Appeals has not “articulate[d] comprehensive criteria for determining whether pollution qualifies as classic or traditional environmental pollution for purposes of insurance policy exclusions.”  She declined to resolve the issue in this case, concluding instead that “even if the dispersal [of toxins following 9/11] did constitute classic or traditional environmental pollution, the claimants in the Underlying Actions asserted independent claims that do not fall within the exclusion, thus triggering Burlington’s duty to defend.”

The insurer argued that the “but for” language of the exclusion was satisfied, since the plaintiffs in the underlying lawsuits would not have suffered their injuries “but for the polluted environment.”  Justice Friedman rejected this argument and instead adopted the reasoning of a pair of Southern District decisions holding that pollution exclusions did not bar coverage for similar personal injury claims brought by workers at or around the World Trade Center site.  See WTC Captive Ins. Co., Inc. v. Liberty Mutual Fire Ins. Co., 549 F. Supp. 2d 555 (S.D.N.Y. 2008) (Hellerstein, J.); and 120 Greenwich Development Associates, LLC v. Admiral Indemnity Co., Case No. 08-cv-6491 (S.D.N.Y. Sept. 25, 2013) (Preska, J.).  Justice Friedman held that the pollution exclusion did not apply because the underlying lawsuits did not assert claims against the insured for causing (or failing to abate) the pollution.  Rather, the lawsuits asserted claims under the New York Labor Law and common law negligence for the insured’s failure “to provide the Plaintiffs with a safe place to work,” including “proper and appropriate respiratory protection and protection from exposure to toxins during the time that the Plaintiffs participated in the clean-up.”  Justice Friedman noted that the insurer “failed to cite any New York authority” holding “that a pollution exclusion . . . applies to defeat an insurer’s obligation to defend workplace safety claims stemming from exposure to pollution,” and there was “at least some New York authority to the contrary.”

This decision illustrates both the breadth of an insurer’s duty to defend, and the heavy burden an insurer faces in seeking to invoke a policy exclusion.  Justice Friedman also observed that an insurance policy must be interpreted in light of “the reasonable expectations of a businessperson.”  In this regard, she found it relevant that “the policy was issued after 9/11” when “the clean-up in areas surrounding the World Trade Center would have been expected to occur. . . .  If this sophisticated insurer sought to exclude liability for injuries sustained by workers performing clean-up activities, it could readily have adopted specific language to that effect.”

On March 8, 2018, Judge Block of the EDNY issued a decision in Illinois Union Ins. Co. v. US Bus Charter & Limo Inc., Case No. 1:16-cv-06602-FB-RLM, holding that indemnification rights under a liability policy survived a class action settlement in which the insured consented to a $50 million judgment against it, subject to a covenant not to execute the judgment against the insured’s assets.  The insured in Illinois Union had sought defense and indemnity coverage under a liability policy for a putative class action in which it was accused of sending unsolicited text messages advertising bus charters.  After the liability carrier denied coverage, the insured proceeded to settle the claim, consenting to the entry of a $50 million judgment against it, subject to a covenant that the judgment could not be “executed on any assets or property” of the insured.  Instead, the insured assigned its indemnification rights under the policy to the plaintiff class, leaving it to the plaintiff to litigate the coverage issue and attempt to satisfy the judgment through the insured’s policy.

Seeking to sidestep liability for the judgment, the insurer brought a declaratory judgment action, arguing, inter alia, that the plaintiff’s covenant not to execute the judgment against the insured’s assets vitiated any indemnification rights under the policy, since the insured was no longer “legally obligated to pay” the judgment.  (Under a standard policy provision, coverage was limited to amounts the insured is “legally obligated to pay as Damages and Claim Expenses.”)  Judge Block disagreed, and granted partial summary judgment to the insured on the issue of coverage, explaining:

The New York Court of Appeals has not addressed whether an insured’s legal obligation to pay survives an assignment to a third party in exchange for a covenant not to execute against the insured. This Court therefore must predict how the New York Court of Appeals would rule by considering the rulings of other state courts and those of intermediate New York courts. . . .

As another judge in this court recently observed, intermediate New York courts have held that an insured remains “legally obligated to pay” despite an assignment of indemnification rights and a covenant not to execute a judgment, so long as the settlement agreement does not include a release of liability. See Intelligent Digital Sys., LLC v. Beazley Ins. Co., Inc., 207 F. Supp. 3d 242, 246 (E.D.N.Y. 2016) (citing Home Depot U.S.A., Inc. v. Nat’l Fire & Marine Ins. Co., 866 N.Y.S.2d 255, 258 (2d Dep’t 2008); Westchester Fire Ins. Co. v. Utica First Ins. Co., 839 N.Y.S.2d 91, 94 (2d Dep’t 2007)). Illinois Union cites no contrary New York state court authority.

Moreover, a majority of courts in other jurisdictions holds that coverage exists in such a scenario. See Intelligent Digital Sys., 207 F. Supp. 3d at 246 (collecting cases) (“New York courts and a majority of courts in other jurisdictions have held that an insurance company remains ‘legally obligated’ to pay a claim under a policy even where, as here, the claim was assigned to a third party, and the third party agreed not to execute a judgment against the insured’s personal assets.”); see also Justin A. Harris, Judicial Approaches to Stipulated Judgments, Assignments of Rights, and Covenants Not to Execute in Insurance Litigation Approaches to Stipulated Judgments, Assignments of Rights, and Covenants Not to Execute in Insurance Litigation, 47 Drake L. Rev. 853, 857-58 & n.22 (1999) (acknowledging majority rule). Given that New York intermediate courts are in agreement with the majority rule, the Court concludes that the New York Court of Appeals would find that an insured remains “legally obligated to pay” despite an assignment of indemnification rights to a third party and the third party’s covenant not to execute against the insured.

This decision illustrates one risk an insurance carrier takes in disclaiming its duty to defend – it loses control of the defense, and can find itself on the hook for a settlement to which it might not have consented had it been at the settlement table.  The insurer can mitigate that risk somewhat by bringing a preemptive declaratory judgment action early on, so that the issue of defense coverage is resolved at an early stage of the underlying litigation.  But that course of action has another downside for the insurer – fee-shifting.  Ordinarily, an insured that prevails in a declaratory judgment action is not entitled to recover legal fees incurred in the lawsuit against the insurance carrier; rather, each side bears its own costs.  However, the New York Court of Appeals has recognized an exception to the so-called “American Rule” on fee-shifting, permitting an insured to recover attorneys’ fees when it prevails in a declaratory judgment action commenced by the insurer.   See Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21 (1979).

This blog previously covered Justice Sherwood’s decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2017 NY Slip Op 32728(U), which granted a preliminary injunction directing three excess D&O insurers to advance attorneys’ fees and costs for the defense of a securities fraud prosecution and a related SEC enforcement action.  (N.B. I represent one of the insureds and argued the preliminary injunction motion on behalf of all the insureds.)  On March 22, 2018, the First Department denied the motion of one of the excess insurers (Freedom Specialty) to stay the preliminary injunction pending appeal.  Thus, advancement of much needed funds, pursuant to the order, must commence immediately.

Also of note:  Justice Sherwood’s ruling was recently the subject of an extended article in the New York Law Journal (available here), which analyzes the decision as a “demonstrat[ion] that the courts [] understand the importance of advancement of defense costs related to regulatory proceedings.”

On March 9, 2018, the Second Department issued a decision in Graphic Arts Mut. Ins. Co. v. Pine Bush Central School Dist., Index No. 6304/2015, holding that a school district’s entitlement to indemnity coverage under a CGL policy for the cost of settling a religious discrimination case depended on questions of fact.

Graphic Arts arose from a lawsuit filed by a group of students from the Pine Bush School District, alleging that the students were subjected to anti-Semitic harassment and discrimination by other students, which was reported to, but ignored by school officials.  According to the Complaint, the school officials’ conduct gave rise to an inference that they “intended for the harassment to occur.”  After the district settled the lawsuit, its CGL insurance carrier filed a declaratory judgment action arguing that claims arising from “intentional discriminatory conduct” were not covered by the policy.  The trial court granted a motion to dismiss the carrier’s complaint, but the Second Department reversed, explaining:

Whether a loss is the result of an accident must be determined from the point of view of the insured.  Where the loss is unexpected, unusual, or unforeseen from the point of view of the insured, the loss constitutes an accident. An act that is intentionally committed or performed may still be considered an accident within the meaning of an insurance policy, as long as the insured did not expect or intend the harm caused.

Whether an event or series of events qualifies as an accident is a question of fact.  Regardless of the initial intent or lack thereof as it relates to causation, or the period of time involved, if the resulting damage could be viewed as unintended by the fact finder the total situation could be found to constitute an accident. . . .

While it is not legally impossible to find accidental results flowing from intentional causes, i.e., that the resulting damage was unintended although the original acts leading to the damage were intentional, the insurance policies do not conclusively establish that the plaintiff is obligated to indemnify the defendants in the underlying action, and the other evidence submitted by the defendants did not utterly refute the factual allegations set forth in the plaintiff’s complaint. Whether the incidents set forth in the amended complaint in the underlying action were accidents present questions of fact which cannot be determined on a motion to dismiss pursuant to CPLR 3211(a)(1) and (7).

(Citations omitted).

One takeaway from this decision is the important distinction between an insurer’s duty to defend, and the duty to indemnify.  Here, the carrier agreed to provide the insured a defense, but may ultimately be able to establish a defense to coverage.  The standards for defense and indemnity coverage are different.  The duty to defend is “exceedingly broad,” and arises whenever there is “a reasonable possibility of coverage.”  Hillcrest Coatings, Inc. v. Colony Ins. Co., 151 A.D.3d 1643, 1645 (4th Dep’t 2017).  The duty to indemnify often depends on the actual facts developed in the underlying case.

Determining which state’s law applies is an important issue in any insurance coverage dispute.  Indeed, the outcome may depend on it, as different states have different rules on the interpretation and enforcement of policy provisions, what the claims the insured can bring, and a host of other issues.  Frequently, however, insurance policies do not have choice-of-law provisions.  Thus, the applicable law must be determined under a conflicts of law analysis.  A recent decision from Judge Glenn T. Suddaby of the NDNY (Ben Weitsman & Son of Scranton, LLC v. Hartford Fire Insurance Co., Case No. 3:16-CV-0780 (N.D.N.Y. Feb. 13, 2018)) provides a helpful overview of the conflicts of law rules applied to insurance coverage disputes under New York law.  As Judge Suddaby explains:

In cases involving insurance contracts, courts look primarily at which state “the parties understood was to be the principal location of the insured risk” unless (with respect to the particular issue) some other state has “a more significant relationship” to the transaction and the parties (such as being where the parties resided and/or where the contract was issued and negotiated).  Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 318 (N.Y. 1994); Colonial Penn Ins. Co. v. Minkoff, 338 N.Y.S.2d 444, 445 (N.Y. App. Div., 1st Dep’t 1972), aff’d, 33 N.Y.2d 542 (N.Y. 1973); Steinbeck v. Aetna Casualty and Surety Co., 81 A.D.2d 382, 385-86 (N.Y. App. Div.,1st Dep’t 1981); Fireman’s Fund Ins. Co. v. Great Am. Ins. Co., 10 F. Supp. 3d 460, 496 (S.D.N.Y. 2014); cf. Munzer v. St. Paul Fire and Marine Ins. Co., 145 A.D.2d 193, 200-01 (N.Y. App. Div., 3d Dep’t 1989) (characterizing the understood location of the insured risk as the “primary factor” in the application of the “grouping of contacts rule” in an insurance case).

When the insured risk is essentially restricted to one state, the understood location of the insured risk is given “overriding consideration in determining applicable law.”  O’Neill v. Yield House Inc., 964 F. Supp. 806, 810 (S.D.N.Y. 1997).  When, however, the understood location of the insured risk is spread across multiple states, the understood location of the insured risk is given “less significance.” O’Neill, 964 F. Supp. at 810. In such a case, the insured’s principal place of business is the primary factor. In re Liquidation of Midland Ins. Co., 16 N.Y.3d 536, 544 (N.Y. 2011); Certain Underwriters at Lloyd’s, London v. Foster Wheeler Corp., 36 A.D.3d 17, 24, 27 (N.Y. App. Div., 1st Dep’t 2006), aff’d, 9 N.Y.3d 928 (N.Y. 2007); Fireman’s Fund Ins. Co., 10 F. Supp. 3d at 496.

Having said all of that, while grouping of contacts is the primary analytical tool in contract cases, in certain instances “the policies underlying conflicting laws in a contract dispute are readily identifiable and reflect strong governmental interests, and therefore should be considered.” Zurich Ins. Co., 84 N.Y.2d at 318-19 (quoting Matter of Allstate Ins. Co., 81 N.Y.2d at 226). Theoretically, in a proper case, a foreign State’s sufficiently compelling public policy could preclude an application of New York law otherwise indicated by the grouping of contacts analysis, particularly where New York’s policy is weak or uncertain.” Zurich Ins. Co., 84 N.Y.2d at 319.

In this case, the Court found no actual conflict between New York and Pennsylvania law with respect to the policy exclusion at issue. Judge Suddaby noted that if there were a conflict, Pennsylvania law would apply because “the parties to th[e] policies clearly understood Pennsylvania to be the principal location of the insured risk,” and “even if the understood location of the insured risk was spread across multiple states (i.e., Pennsylvania and New York),” the Court would give “controlling weight” to the fact that “Plaintiff Ben Weitsman & Son of Scranton, LLC’s principal place of business was in Pennsylvania.”