Westchester Fire Ins. Co. v MCI Communications Corp.

Westchester Fire Ins. Co. v MCI Communications Corp. 2010 NY Slip Op 05258 [74 AD3d 551] June 15, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Westchester Fire Insurance Company, Plaintiff,
v
MCI Communications Corporation, Appellant, and CNA Insurance Company et al., Respondents, et al., Defendants. Chubb Indemnity Insurance Company et al., Third-Party Plaintiffs, v MCI WorldCom Network Services, Inc., Third-Party Defendant-Appellant.

—[*1] Dickstein Shapiro LLP, New York (Linda Kornfeld, of the California bar, admitted pro hac vice, of counsel), for appellants.

Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Joseph D'Ambrosio of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 22, 2009, which, inter alia, granted CNA Insurance Company's motion for summary judgment declaring that it does not have a duty to pay MCI's "first dollar" defense costs and denied as moot MCI's motion for summary judgment declaring that CNA has a duty to defend it in numerous landowner actions, unanimously affirmed, with costs.

The court, in a well-reasoned decision, properly found endorsement 30 in the 1992-1995 policies at issue unambiguous in providing that MCI is liable for its own defense costs. Contrary to MCI's contention, the provision is not an exclusion (see Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]). Absent ambiguity, extrinsic evidence is inadmissible. Nor is there a need to resort to contra proferentem, which, in any event, would be inapplicable to this sophisticated policyholder (see Cummins, Inc. v Atlantic Mut. Ins. Co., 56 AD3d 288, 290 [2008]). [*2]

We have considered MCI's other contentions and find them unavailing. Concur—Mazzarelli, J.P., Moskowitz, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 32438(U).]