ACE Fire Underwriters Ins. Co. v ITT Indus., Inc.

ACE Fire Underwriters Ins. Co. v ITT Indus., Inc. 2011 NY Slip Op 04518 Decided on May 31, 2011 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 May 31, 2011
Tom, J.P., Saxe, Acosta, Freedman, Abdus-Salaam, JJ.
5198 600133/06

[*1]ACE Fire Underwriters Insurance Company, etc., et al., Plaintiffs, Pacific Employers Insurance Company, Plaintiff-Respondent,

v

ITT Industries, Inc., etc., Defendant-Appellant, U.S. Silica Corporation, etc., et al., Defendants. 5199 ACE Fire Underwriters Insurance Company, etc., et al., Plaintiffs-Appellants, ITT Industries, Inc., etc., Defendant-Respondent, Affiliated FM Insurance Company, et al., Defendants.



 
Morgan, Lewis & Bockius LLP, New York (David A.
Luttinger, Jr. of counsel), for ITT Industries, Inc.,
appellant/respondent.
Siegal & Park, Mt. Laurel, NJ (Melvin R. Shuster, of the New
Jersey Bar, admitted pro hac vice, of counsel), for Pacific
Employers Insurance Company, respondent, and for ACE appellants.

Order, Supreme Court, New York County (Herman Cahn, J.), entered July 20, 2007, which, to the extent appealed from, granted plaintiff Pacific Employers Insurance Company's motion to dismiss defendant ITT Industries, Inc.'s first, fourth, seventh and eighth counterclaims for failure to state a cause of action, unanimously affirmed, with costs. Order, same court and Justice, entered August 21, 2007, which granted defendant's motion pursuant to CPLR 327 to sever and stay, pending resolution of a California action, plaintiff's remaining claim for a declaration regarding its contractual obligation, under Endorsement 44 of its insurance policy, to indemnify defendant against certain silica-related claims, unanimously affirmed, with costs. [*2]

Supreme Court providently exercised its discretion in severing and staying plaintiff's remaining claim on the ground of forum non conveniens, since the claim has already been the subject of both a ruling on summary judgment and a decision on appeal in California (see Minton v Minton, 277 AD2d 103 [2000]).

The court properly dismissed defendant's breach of contract claim, since it lacked a description of the essential terms of the alleged "claims handling" agreement — namely, parties, duration, date, and consideration (see Matter of Sud v Sud, 211 AD2d 423, 424 [1995]).

Defendant's equitable subrogation claim was also properly dismissed. Defendant was obligated to make payments to nonparty Pacific Coast Resources (PCR), the purchaser of its subsidiary. PCR has no rights against plaintiff. Accordingly, there were no rights of PCR to which defendant could be equitably subrogated (see Gerseta Corp. v Equitable Trust Co. of N.Y., 241 NY 418, 426 [1926]).

Dismissal of defendant's claim seeking a declaration that it is entitled to coverage in the event it is named as a defendant in any of the underlying silica-injury cases, was also proper since the declaration sought would be merely advisory (see New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]).

Lastly, the court properly dismissed defendant's claim for statutory remedies under Pennsylvania Consolidated Statutes Annotated, title 42, § 8371. Plaintiff's reason for denying coverage, whether ultimately correct or not, was reasonable, as it merely tracked the plain language of its policy endorsement.

We have considered the parties' remaining contentions and find them unavailing.

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

ENTERED: MAY 31, 2011

CLERK