Clifford Chance Ltd. Liab. Partnership v Indian Harbor Ins. Co.

Clifford Chance Ltd. Liab. Index 602862/05 Partnership v Indian Harbor Ins. Co. 2007 NY Slip Op 05321 [41 AD3d 214] Decided on June 14, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2007
Andrias, J.P., Saxe, Friedman, Nardelli, Malone, JJ.
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Index 602862/05

[*1]Clifford Chance Limited Liability Partnership, et al., Plaintiffs-Appellants,

v

Indian Harbor Insurance Company, Defendant-Respondent.




Cooley Godward Kronish LLP, New York (William J. Schwartz
of counsel), for appellants.
Ross, Dixon & Bell, LLP, Washington, DC (Richard A.
Simpson, of the District of Columbia Bar, admitted pro hac vice, of
counsel), and Landman Corsi Ballaine & Ford P.C., Newark,
NJ (Natalie Garcia of counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered December 29, 2006, which denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.

In light of the clear allocation provision in the policy, which had the effect of a partial exclusion (cf. Owens Corning v National Union Fire Ins. Co. of Pittsburgh, PA, 257 F3d 484, 492-493 [6th Cir 2001]), and despite the joint and several liability of the insured and uninsured defendants in the underlying litigation, the insurer is only required to pay a portion of its insured's claim for reimbursement of the settlement amount based on a determination of the insured's and the uninsured's relative exposures in the litigation and the benefits received from the
settlement (see PepsiCo, Inc. v Continental Cas. Co., 640 F Supp 656, 661-662 [SD NY 1986]). Level 3 Communications v Federal Ins. Co. (1999 WL 675295 [ND III 1999]), which involved a more limited allocation provision, does not require otherwise. We have considered plaintiffs' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2007

CLERK