Arch Ins. Co. v Old Republic Ins. Co.

Arch Ins. Co. v Old Republic Ins. Co. 2017 NY Slip Op 04798 Decided on June 13, 2017 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 13, 2017
Friedman, J.P., Mazzarelli, Moskowitz, Gische, Gesmer, JJ.
4255 157377/13

[*1]Arch Insurance Company, Plaintiff-Respondent,

v

Old Republic Insurance Company, Defendant-Appellant, Indian Harbor Insurance Company, etc., et al., Defendants.

Harrington, Ocko & Monk, LLP, White Plains (Paul Howansky of counsel), for appellant.

Gallo Vitucci Klar LLP, New York (Christen Giannaros of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered July 21, 2016, which granted plaintiff's motion for summary judgment declaring that defendant Old Republic Insurance Company is obligated, on an equal basis with plaintiff, to defend and indemnify Bovis Lend Lease LMB, Inc. in the underlying personal injury action, and so declared, unanimously affirmed, with costs.

The policy's conflicting self-insured retention (SIR) clause and private and non-contributory (PNC) endorsement cannot be reconciled as to Bovis, an additional insured. The PNC endorsement, which was added after the effective date of the policy containing the SIR clause and made effective retroactively, is controlling (see Kratzenstein v Western Assur. Co. of City of Toronto , 116 NY 54, 57-58 [1889]). The clause expressly provides that it "modifies" the relevant coverage to provide to an additional insured "primary insurance on a non-contributory basis" if such coverage is required by the contract between the named insured and the additional insured, as is the case here. The subsequently agreed-to PNC endorsement's requirement of "primary insurance on a non-contributory basis" is, on its face, inconsistent with, and therefore overrides, the original policy's $1,000,000 SIR provision. We note that nothing in the contract between Bovis and the named insured supports the conclusion that Bovis consented to a self-insured retention. Indeed, as previously noted, the contract requires that coverage for the additional insured be primary (see Pecker Iron Works of N.Y. v Traveler's Ins. Co. , 99 NY2d 391 [2003]).

We have considered Old Republic's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 13, 2017

CLERK