Metropolitan Transp. Auth. v Zurich Am. Ins. Co.

Metropolitan Transp. Auth. v Zurich Am. Ins. Co. 2009 NY Slip Op 09517 [68 AD3d 610] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Metropolitan Transportation Authority et al., Appellants,
v
Zurich American Insurance Company, Respondent.

—[*1] Mendes & Mount, LLP, New York (Robert J. Brown of counsel), for appellants.

Melito & Adolfsen P.C., New York (S. Dwight Stephens of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard F. Braun, J.), entered July 16, 2009, declaring that the coverage afforded plaintiffs under a $10 million umbrella policy issued by defendant regarding an underlying personal injury action was limited to $1 million in excess insurance, and that defendant was entitled to $500,000 on its counterclaim for the amount it paid to settle the underlying action, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered May 29, 2009, to the extent it granted defendant's motion for summary judgment on its counterclaim, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant excess insurer issued a follow-form policy, which incorporated the terms and conditions of an underlying $1 million general liability insurance policy to the extent not contradicted by the excess policy's express terms (see Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]). Here, the underlying policy provided that additional insureds, such as plaintiffs, would be covered up to the lesser of the policy limits or the amount required by their trade contracts with the insured. There is no doubt that plaintiffs were additional insureds (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 146-147 [2008]). Nor was [*2]there any conflict between the excess policy terms and the blanket additional insured rider in the underlying policy. As such, the trade contract limitation was incorporated into the excess policy (see id.). Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.