American Guar. & Liab. Ins. Co. v State Natl. Ins. Co., Inc.

American Guar. & Liab. Ins. Co. v State Natl. Ins. Co., Inc. 2009 NY Slip Op 08135 [67 AD3d 488] November 12, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

American Guarantee & Liability Insurance Company, Individually and as Subrogee of S&W Realty LLC, Appellant,
v
State National Insurance Company, Inc., et al., Respondents.

—[*1] Melito & Adolfsen, P.C., New York (Ignatius John Melito of counsel), for appellant.

Max W. Gershweir, New York, for respondents.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered December 18, 2008, summarily dismissing the complaint, unanimously affirmed, with costs.

Plaintiff, the excess insurance carrier, sought a declaration that the coverage disclaimer by defendant State National, the primary insurer, for reimbursement of funds advanced by the excess insurer on the insured's behalf to settle the underlying personal injury action, was untimely as a matter of law, and that the primary insurer's policy exclusion was inapplicable and ambiguous. The court properly found that the primary insurer's "construction" exclusion was unambiguous and applied to the activities being performed by the injured party at the time of his accident. The exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case (see Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]). The court also properly found that the protections of Insurance Law § 3420 (d) were inapplicable to one insurer's claim for reimbursement from another insurer (see Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 91-92 [2005]). Concur—Gonzalez, P.J., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.